The amendment proposed by Senator Sir John Keane goes considerably further than a more limited amendment to another section which stands in my name but, between them, they propose the only possible alternative to a state of affairs which is now regarded as profoundly unsatisfactory. Local government inquiries were originally introduced for two purposes. They were to inform the mind of the Minister as to certain facts which he might have difficulty in ascertaining by himself in the secrecy of his own office and they were made public inquiries in order that the public might have the same opportunity of knowing the evidence on which findings of fact could be based as the Minister himself might have. It was understood, and it has been believed for a long time, that the Minister would act upon the findings of fact made by the person whom he put in charge of the inquiry. That was the original object and for a long time it was the practice, but the state of affairs which now has arisen is that, rightly or wrongly, a public local inquiry is associated in the minds of most people with a previous Ministerial determination to achieve a certain state of affairs, an inquiry which has no effect whatsoever upon assisting the Minister to make up his mind, because that mind is already made up, but which operates merely as a smoke-screen to conceal the fact that the action has been predetermined. I may be right or I may be wrong, but that is the belief of the majority of the citizens of this country, a belief which certain matters referred to by Senator Sir John Keane have helped to augment. I think that in the present juncture it is not open to me to lend point or pungency to my remarks by further references, so I shall omit them and deal with the matter purely in the abstract.
There has been an amazing amount of clotted nonsense talked on the subject of these inquiries and I regret to say that a very appreciable portion of it has emanated from the Minister's Department. It has been suggested that these inquiries are judicial inquiries. They are not judicial inquiries. It has been denied that they are quasi-judicial inquiries. They are quasi-judicial inquiries. They possess all the elements of a judicial inquiry except one and that is a very important one which, in fairness to the Minister, must be always stressed. They involve an investigation of facts by the well-known method which centuries of experience in courts of law have shown to be best for ascertaining those facts. They involve to a certain degree opposite parties. They involve considerations of law and they involve the presentation of views as to facts and views as to law by the persons concerned. In all those respects they are the same as a full judicial inquiry, but there the resemblance ceases.
In a judicial inquiry the determination of the action which arises out of the facts found rests with the person who is in control of that inquiry. In other words, it is the judge presiding in a court of law who not merely hears the evidence and decides the facts with or without the help of a jury, but it is he who determines what is to be done in view of those facts. That element is completely absent from these local inquiries. It is the Minister who decides what eventually must be done and, therefore, it is absurd to call them judicial inquiries and it is equally absurd to withdraw from them the name of quasi-judicial inquiries.
Now, what is the position? The Minister is in complete charge of what is to be done. It is his discretion and it his responsibilty, and for that he answers only to the Oireachtas and, more particularly, to the Dáil. But in so far as the facts are to be ascertained by judicial methods the Minister ought to be bound by the findings of fact as found by the person who takes the inquiry, and that for two reasons. It is only the person who takes the inquiry and hears the witnesses who can form a correct view as to the reliability of the witnesses. It is only that person who knows when he is satisfied and when he desires further information, and even if the Minister were a trained lawyer it would not lie in his mouth to refuse to accept the conclusions of fact come to by an inspector or other person who is taking the inquiry.
Observe now that I say "conclusions of fact". The evidence adduced is a completely different thing from the conclusions of fact which are based upon that evidence. The mere publication of evidence or the mere admission of the public does not cure the evils of the refusal to disclose what were the conclusions of the one person who can draw conclusions from the evidence which has been adduced before him. There can be very little doubt that when these inquiries were first inaugurated the intention was that just as the inquiry itself was public so the conclusions of the person acting in a quasi-judicial office should also be made public. It is quite obvious to everybody I think that the Minister will not come here and arrogate to himself any particular right to be able to judge evidence from a written print, but in fact unless those portions of the report which deal with conclusions of fact are published the Minister has a free hand to disregard anything which is put before him. I say that when these inquiries were first inaugurated, although there was no particular provision that the inspector's report should be published, I consider that that was probably the intention.
Let us now skip the years to a period when the matter had to be considered as to whether it was or was not desirable that the report should be made public. Departments, not merely the Department of Local Government in this country, but other Departments in this country and other Departments in other countries have found it very convenient to keep reports secret. It was not a universal rule. Reports were published, but it was found convenient to have the power to keep them secret. The matter was considered at length by eight judges, the contention being the somewhat absurd one that as the law then stood no adverse decision could be given unless as an indispensable prerequisite the Department concerned published the report.
Now, that was an untenable legal proposition at the time, but of the eight judges who considered the question one only was of opinion that publication of the inspector's report would, as a general rule, be undesirable. Of the eight judges who considered it, three were in favour of the general practice of always publishing the inspector's report, four judges were of the opinion that though there should be no general rule that the inspector's report should be published, yet that in many cases, or in most cases, it was in the public interest and it was desirable that publication should be made. Now, that is a summary of the views of the eight judges who were concerned in Arlidge's case. The matter did not rest there, because it was referred to a select committee of exceedingly eminent publicists in England who considered, amongst other things, the question of Ministerial tribunals. That report, which recent events have made quite familiar to the people of this country, was the Donoughmore Report.
Now, that report, first of all, at page 73, gives substantially the definition of judicial and quasi-judicial tribunals which I have given in shortened form to the House. Secondly, it came to consider, after having put before it all the arguments for and against publication of inspectors' reports, whether it was or was not, all things considered, desirable. I would like to read a short extract from that publication. It deals, first of all, with the arguments for and against publication and it comes to the following conclusions:—
"To these various arguments for and against publication we have given prolonged consideration and on balance have come to the conclusion that publication is right. By that we do not mean that the expense of printing a long report should in every case be incurred; but that in all cases the report of the inspector should be made available to the parties concerned and to the Press, and in important cases should be officially published by the Department responsible for the inquiry.
We fully appreciate the importance of not undermining the confidential relationship between the Minister and his officials and, however strong the case for publication in order to allay a public suspicion, we should, in the public interest, resist the demand for publication if any such consequence were, in our judgment, likely to ensue.
We have considered the question whether the inspector or other person who holds the public inquiry should be entitled to make a confidential report to the Minister in addition to the report for publication. In our opinion this should never be done in the case of an inquiry preliminary to a judicial decision. If judicial decisions are to be given by Ministers at all, it is essential that they should be given as far as possible in accordance with the forms of justice and that nothing should reach the ears of the judge behind the backs of the parties. Most inquiries, however, are held in connection with quasi-judicial decisions and in the case of such inquiries, we do not take so strict a view. Whilst we think that there should be no confidential reports on those matters of fact or law which come strictly within the scope of the report of the inquiry, we see no objection to the tendering by separate report or otherwise of such advice as the Minister may call for on any questions of Ministerial policy which may be involved."
I read that passage because it is that intervening course which is proposed in certain amendments which I shall be moving later.
"We have heard the objection made to the publication of the inspector's report that it might lead to a demand for a hearing by way of appeal of the question upon which evidence was taken on the inquiry, and that, for obvious reasons, there ought to be finality in such matters. With the last point we entirely agree, but we do not fear any such results from the publication of the inspector's report. We do not recommend that there should be any further investigation of the facts after full public inquiry. Indeed, our view would be met if the inspector's report was communicated, with the Minister's decision, to the parties concerned.
In certain cases the Minister's decision may be influenced not only by reasons of law or public policy which lie entirely outside the field of public inquiry but by information which reaches him through channels other than the inspector's report. We do not think there is anything improper in this; but when it happens, and the Minister feels it right to make a decision which is against the weight of evidence of the inquiry, we are of opinion that he should, in communicating his reasoned decision, include the statement as to the nature of extraneous evidence by which he has been influenced and thereby remove, at least, one possible source of misunderstanding and decision."
That was the view that was unanimously come to. It is the view that has been reinforced recently, because a habit has grown up in this Department, not merely of withholding the inspector's report which is sometimes done in England, because the general recommendation of publications has not yet been implemented in England, a habit not only of withholding inspectors' reports but of publishing a summary produced by a person or persons unknown which purports to be a finding of facts on the evidence. And those summaries are so mendacious, so totally devoid of any reasonable conclusion which any person with any training or skill could possibly draw from the evidence, that the whole of public confidence in local inquiries is completely undermined. We are left to the conclusion either that the persons who drew up some of those reports and made those alleged statements as to what the evidence proves, have not got the ability of the ordinary office boy, or they have the ability and are deliberately abusing it to mislead the public.
I have had occasion to look at one or more of those documents. I can understand the Minister saying this: "I will go my own line, I am responsible, I have made up my mind to do so-and-so, and I will do it and give no reasons." I can understand him saying: "Here are the findings of the facts by the inspector: there are other matters which I have taken into consideration which have influenced me and caused me to act." But I cannot understand the withholding of the findings by the only person qualified to make findings and the publication of alleged findings of fact which to any person with any skill or training, are on the face of it not only merely misleading, but either deliberately distorted or completely incompetent. That is not playing fair to the public and is not playing fair to whatever persons may be in fault. That is a system which shows at once either that local inquiries should be abolished or the present system of holding them should be discontinued; and the only way in which the public can have any safeguard is that there should be a publication either of the inspector's report other than such portions of it as merely give advice or at least that there should be publication of those portions which are deliberate findings of facts by the person who was there and was qualified to judge.
Senator Sir John Keane has chosen the course in his amendment of desiring that the whole of the report should be published and he is probably right in asserting that he has the backing of the unanimous findings of the Donoughmore Report. For myself, realising the difficulties in which a Minister may find himself, I would not be prepared to press the matter on to that length, but I am prepared to press that in so far as facts are found, they should be found by the person who hears the witnesses, and that those facts should either be binding upon the Minister as being the findings by the person best qualified to find, or if not binding on the Minister, they should be disclosed so that the public may know that the Minister has chosen to put his own interpretation upon the evidence or has chosen to neglect the evidence, or has chosen despite all the evidence, to take into consideration other extraneous matters for which he may have to be responsible to the Dáil and even to a certain amount of criticism in this House.