Amendment No. 1 is in the name of Deputy Costello. Amendment No. 2 is related, therefore, it is proposed to discuss amendments Nos. 1 and 2 together, by agreement.
Tribunals of Inquiry (Evidence) (Amendment) Bill 2003 [Seanad]: Report and Final Stages.
I move amendment No. 1:
In page 4, between lines 13 and 14, to insert the following:
"(2) Save where the application relates to a proposal by a tribunal to exercise a function without notice to any person, being a function that may lawfully and properly be exercised in that manner, a tribunal shall give notice of a proposed application under this section to any person likely to be affected thereby.".
My first amendment relates to section 3. I want clarification of those who will be affected by the action that is proposed. Section 3 makes provision for a tribunal or the chairman of a tribunal to apply to the High Court in respect of any matter relating to the performance of the functions of the tribunal or the chairman, and that includes costs. My amendment refers to the effect of that application on other people because if it involves the performance of some of the functions of the tribunal or the chairman, it is relevant to somebody who is before the tribunal. In respect of costs, for example, that might be a very relevant matter where somebody might be affected by the outcome.
I am seeking to make provision for notice to be given of such a proposed application and the opportunity for somebody to have audience in the High Court as to the reason the performance in the manner that is presented might not take place. In the context of natural justice, if there is an application to the High Court it should not be ex parte but should follow some opportunity or notice granted to the person who will be affected by it. That is a reasonable point of view.
The second amendment is a continuation of that in many ways because it arises out of the application to the High Court. The High Court may grant directions or give orders and I want to ensure that if such orders are given those orders would be binding not just on the tribunal but on the people who will be affected by the decision of the High Court to grant an application, and to clarify the distinction between directions and orders. These two amendments would go some distance towards improving the legislation.
The amendments are opposed. Amendment No. 1 proposed by the Deputy would provide for the insertion of a new subsection (2) to section 3 to the effect that a tribunal shall give notice of a proposed application to seek the directions of the High Court to any person likely to be affected thereby. We should be clear that, unlike in a civil or criminal case, in a tribunal the parties are not definite at all the stages of the process. However, tribunals are required to observe natural justice in their actions.
This amendment, if it were accepted, would impose an impossible burden on the chairperson of a tribunal seeking to exercise the power provided by section 3. The chairperson would have to identify any person likely to be affected in any particular circumstances giving rise to the application. This would lead to a logistical nightmare being imposed on the tribunal in attempting to contact such persons or classes of persons. I can think of no similar requirement in any comparable situation.
In any event, power is given to the High Court under section 4(a)(2) upon application from the tribunal to give such directions and make such orders as is considered appropriate. On first hearing the application, the High Court can make an order, if necessary, directing that the motion be served on specified parties or classes of parties. This is a more pragmatic approach than placing the burden initially on the tribunal to make a decision to identify the parties or classes of parties who might be affected by the application. The High Court would be in a better position after a preliminary hearing of the application to make an order directing that the motion be served on a particular party, if necessary adjourning the application, if appropriate, to hear submissions.
Amendment No. 2 to section 3 as proposed by the Deputy would introduce an explicit provision that directions, once received from the High Court, would be binding on the tribunal or on any person concerned. I do not accept that we require such an amendment. If a tribunal seeks directions of the High Court, it is implicit upon receiving the directions that it will comply with them. Non-compliance with the court's direction by a tribunal which has sought the directions in the first place would be an outlandish scenario which no doubt would be amenable to judicial review by affected third parties in any event. I should mention that the Attorney General concurs with these views on both the proposed amendments. Accordingly, amendments Nos. 1 and 2 to section 3 are opposed.
I do not want to argue the point further because the matter came up at an earlier stage. In the event of the chairman of the tribunal seeking an order in regard to costs from the High Court, can the Minister of State give us some idea of how that order might be sought? What application would that entail? Would it be in respect of costs of specific individuals or certain modules? Perhaps it relates to an individual.
We all know of the enormous legal costs associated with tribunals. Many of us heard Mr. Justice Flood talking about his time on the tribunal on the Marion Finucane show this morning and how he believed that its lawyers were not that well paid. For the rest of us in the real world, such fees are astronomical. I would have thought that, in such a matter, where an application is made by the chairman of the tribunal to the High Court regarding how costs are to be assessed and allocated, it would be appropriate that a person affected have the opportunity of some sort of audience or at least notice.
Those are actions and issues for the chairman of the tribunal, and we should not anticipate what he will do in such a situation. As an independent person, it is his own business and entitlement to decide how to apply for costs.
The issue is how the person would be affected by the application, since he or she would seek direction from the High Court. He would make application to it, and it would hear the application only from the tribunal chairperson. Given the implications and effect that it might have on various other persons who might be affected by having to pay astronomical sums, it seems appropriate that, if individuals are identified, they have some right of audience or at least have notice that such an application is going to the High Court. What does the Minister of State have to say on that?
The Minister of State made a response that he should perhaps amend. He said that the chairperson of the tribunal could effectively do what he or she liked. I do not think that he meant to say that. The chairperson of the tribunal would be expected to act entirely within the law. We are facilitating the tribunal chairmen by this additional Bill and making the law clearer for them. The Minister may wish to clarify what he said earlier.
The Minister of State has spoken twice, so he cannot respond. We must stick to the rules of debate on this.
He has spoken only once.
My information is that he has spoken twice.
One and a half times.
He has spoken twice. Is the amendment being pressed?
May the Minister of State not answer?
We cannot return to the style of a committee; we are on the Report Stage.
Amendment put and declared lost.
Amendment No. 2 not moved.
Bill reported without amendment, received for final consideration and passed.
As the Bill is considered by virtue of Article 20.2.2° of the Constitution to be a Bill initiated in the Dáil, it will be sent to the Seanad.