The purpose of this Bill is to amend the Tribunals of Inquiry (Evidence) Act, 1921 so as to remove certain defects which have become apparent over the years and to inroduce a number of desirable changes in the law in this area. As Senators are aware, the Bill is being introduced now so that the changes will be effective for the commencement of the inquiry which the Government have already decided to hold into the tragedy which occurred at Whiddy Island on 8 January last.
The Whiddy disaster is, therefore, the immediate background to the Bill but I should like to emphasise that the 1921 Act and this Bill, when enacted, taken together, will form part of the general law relating to the holding of sworn public inquiries.
Before I go on to deal with the main provisions in the Bill, I should like to place on the record of this House my own and the Government's deep sadness and sympathy at the tragic loss of life that occurred in Whiddy Island and to extend, once again, our sincere sympathy to the relatives and friends of all those who lost their lives.
Senators who have examined the 1921 Act will have noted that it is a short statute providing the general framework for the holding of sworn inquiries by means of special tribunals. It has been the basis for many important inquiries since the foundation of the State.
Section 1 of the Act outlines the procedure for the setting up of a tribunal. It provides that the Government or a Minister of the Government may be resolution passed in both Houses of the Oireachtas establish a tribunal for the holding of an inquiry into a definite matter described in the resolution as of "urgent public importance".
Following the passing of the resolutions, the Minister or the Government by instrument appoint the tribunal and the appointing instrument may provide for the application of the Act to the tribunal so appointed. That is how the wheels are set in motion, so to speak, and, therefore, as soon as this Bill becomes law, resolutions will be moved providing for the establishment of the tribunal to enquire into the Whiddy Island disaster. Senators will, at that time, have an opportunity of discussing the terms of reference of the Whiddy tribunal.
The 1921 Act, of course, pre-dated the Constitution of Ireland of 1937 and it is, therefore, only good law to the extent that it is not inconsistent with the terms of the Constitution and has only to that extent been carried over into our law by the terms of Article 50 of the Constitution. As a result of a decision of the Supreme Court in 1971 and applying the reasoning of the court in that decision, it seems virtually certain that part of the 1921 Act is inconsistent with the terms of certain provisions in the Constitution and would, if challenged, be struck down. The decision of the Supreme Court to which I refer did not, of course, deal directly with the 1921 Act; it was concerned with the Committee of Public Accounts of Dáil Éireann (Privilege and Procedure) Act, 1970 (No. 22 of 1970). However, part of that Act followed in certain material respects part of the 1921 Act and this leads to the conclusion that the "flaw" the Supreme Court held to exist in the 1970 Act also exists in the Act of 1921.
The provision to which I am referring is in section 1, subsection 2 of the Act of 1921. It purports to enable the chairman of a tribunal to "certify" to the High Court the offence of any person who did any one of a number of things such as refusing to attend as a witness. The High Court was then empowered to punish the person as if he had been guilty of contempt of that court.
What the Supreme Court held in the 1971 decision was that the offence of contempt of the High Court was not a minor offence and, therefore, there had to be a right to trial by jury as the Constitution provides. The inference, therefore, is that the law must either allow trial by jury or else make the offence a minor offence with penalties restricted accordingly.
Section 3 of the Bill now before the House will rectify that defect. The Bill, as passed by Dáil Éireann, proposed to make the offences in question minor offences, to be tried in a summary manner only, with a penalty on conviction of up to £500 or 12 months' imprisonment or both, but I should point out at this stage that an amendment will be moved at the Committee Stage in this House to provide for stiffer penalties. To achieve that, the amendment will make the offences in question indictable offences—that is to say there will be a right to trial on indictment before judge and jury—with penalties up to £10,000 of a fine or up to two years' imprisonment or both.
There will still, however, be provision for dealing with alleged offences in a summary manner where the court is of opinion that the facts proved or alleged constitute a minor offence, the accused does not object and the Director of Public Prosecutions agrees. When dealt with summarily, the offences will carry penalties of up to £500 by way of fine or 12 months' imprisonment or both. Some Deputies in the Dáil were of the view that stiffer penalties than those it is now proposed to provide for on indictment should be provided.
There was some suggestion in that House that a fine of £50,000—or maybe more—and up to five years' imprisonment should be provided, but I think we have to be realistic in this matter and not lose sight of the important principle that the punishment should not be disproportionate to the offences in question. Looking at the particular offences, there ought, I believe, to be general agreement that up to £10,000 of a fine and up to two years' imprisonment goes far enough. This will, I suggest, be an adequate deterrent.
I should like to emphasise also that it would be only in the more serious type of case that trial by means of indictment would be contemplated but the Government accept the view put forward in the Dáil that it is right that the provision should be there. There will also, I might add, be a further amendment of a purely drafting nature consequent on the amendment of the penalties provision, but I will deal with that at Committee Stage.
I have started my discussion of the Bill with section 3 because this section is, as I have said, designed to remove a serious defect in the 1921 Act. Before going on to deal with the other sections, I should like to mention one or two other matters in relation to section 3.
What this section does is to substitute a new subsection for subsection (2) of section 1 of the 1921 Act. Not everything is new, however. Paragraphs (a), (b) and (f) are substantially the same as paragraphs (a), (b) and (c) of the 1921 Act provision. There are, however, minor differences. In paragraph (a), which creates the offence of disobeying a summons of a tribunal to attend as a witness, we are allowing for the situation where a person would have a just cause or excuse for not attending such as, for example, if that person were too ill to do so. In such circumstances, the person would not, of course, be commiting an offence. The 1921 Act was silent on this but it can be contended that a court, in construing the old provision, would have read these words in anyway. All we are doing here is making the position clear.
As to paragraph (b), we are, for the sake of completeness, making it an offence to refuse to make an affirmation in addition to the offence under the old provision of refusing to take an oath and we are also making it an offence to refuse to produce "things" legally required by the tribunal to be produced in addition to the offence of refusing to produce documents under the corresponding provision of the 1921 Act. The word "documents" will be constructed as including "things". This is necessary to ensure that "things" will also be included where the word "documents" occurs earlier in the 1921 Act—in section 1, subsection (1) of that Act.
The only change that paragraph (f) has over paragraph (c) of the 1921 Act is that we are providing for the offence of omitting to do something, as well as the existing offence of doing something which would amount to contempt. In doing so, we are simply tightening up the law in this respect.
Paragraphs (c), (d) and (e) introduce new offences. Subsection (2), paragraph (c), makes it an offence to give false evidence to a tribunal. This is necessary because of the uncertainty that exists as to whether the offence of perjury applies to the giving of false evidence to a tribunal.
Paragraph (d) makes it an offence to obstruct or hinder the tribunal in the performance of its functions. This provision will strengthen the powers of tribunals to deal with any attempts that might be made to interfere with evidence. Paragraph (e) makes it an offence for a person to fail, neglect or refuse to comply with an order made by a tribunal. This provision strengthens the powers of tribunals to enforce compliance with their orders.
I should like now to deal with section 2. The 1921 Act did not specifically provide for the appointment of more than one member to a tribunal, although its terms, in other respects, envisaged that there could be more than one member. This has led, in the past, to some doubt and so it is proposed to clear up the point. Before leaving that I should say that, although it is not spelt out in the section—because it is not necessary to do so—a tribunal will reach its conclusions by means of a majority decision. That is the usual practice and it is also usual to have only one report. Apart from that, a tribunal will be free to decide on its own procedure and there is no need to make any further provisions in this respect.
Section 2 also provides for the appointment of an assessor or assessors. In any case where such persons would be appointed they would not be members of a tribunal. Their function would be to help the tribunal by advising it, for example, on evidence of a technical nature. It would be a matter for a tribunal itself to decide on how best to utilise the services of assessors and it is thought best to leave it totally free to do so. Hence, the Bill provides only the minimum necessary in this respect. The position, I might add, will be analagous to that which obtains at present in the Superior Courts where, under the rules of the Superior Courts, there is general provision for the appointment of assessors but no detailed rules dealing with their role. It is left to the court in each case to decide.
That brings me to section 4. Doubt has been expressed in the past as to whether a tribunal appointed under the 1921 Act had general power to make orders corresponding to those which the High Court or a judge of that court could make. The 1921 Act vested in a tribunal the powers of the High Court but only in relation to the specific matters set out in section 1, subsection (1), paragraphs (a), (b), and (c) of that Act. Section 4 of the Bill will remove any such doubt and a tribunal will be able to make such orders as it considers necessary for the purpose of its functions and will have all the powers, rights and privileges that are vested in the High Court in respect of the making of its orders. I should like to emphasise, in this regard, that a tribunal will only have the powers, rights and privileges of the High Court in making orders necessary for the purposes of its functions.
Bearing in mind that the main function of a tribunal is to find facts and that it will not be concerned with imposing legal liability for any wrongs that might have been done—that is a matter of civil law and is reserved to the courts—it can be seen that the powers given to a tribunal under section 4 are quite restricted. What is envisaged here is that, for example, a tribunal should have power to keep order at its sittings.
Section 5 provides that statements or admissions made by a person before a tribunal or by a person being examined on commission or abroad—the power to examine on commission or abroad is contained in section 1, subsection (1), paragraph (c) of the 1921 Act—will not be admissible against that person in any criminal proceedings other than proceedings for the offence of giving false evidence to a tribunal.
I will turn now to the last section of substance—section 6. Under the 1921 Act, section 2, paragraph (b), tribunals have power to authorise the representation before them by counsel, solicitor or otherwise of any person appearing to them to be interested. It has, however, been a matter of some criticism in the past that tribunals have had no power to award costs either to or against persons appearing before them and the Bill now proposes to empower tribunals to do that. Certain criteria by reference to which this would be done are specified, namely, that the tribunal is of opinion that, having regard to the findings of the tribunal and all other relevant matters, there are sufficient reasons rendering it equitable to do so.
The section would allow a tribunal to award costs against any person even if such person were not involved in the proceedings at all and this has been criticised in Dáil Éireann. Such a provision is necessary, however, to enable costs to be awarded against a particular Minister—in effect, the State—because, in many instances, the State may not be involved before a tribunal at all. On this aspect, the Minister for Justice agreed in Dáil Éireann to have another look at the drafting of the section to see whether it could be tightened somewhat. The drafting has been re-examined in consultation with the Attorney General but it is considered that it would be undesireable to alter the section in any way.
Senators will appreciate what the Bill is seeking to do here. It may be that some relatively poor persons will be represented before—to take as an example—the proposed Whiddy tribunal and that that tribunal will decide that some other person or body should be made to bear those persons' costs. That, I think, is an extremely necessary and desirable power to give the tribunal. Moreover, the section has built into it the safeguard that the tribunal, in coming to such a conclusion, must be of opinion that there are sufficient reasons rendering it equitable to do so. That ought to eliminate the risk of a tribunal acting arbitrarily. If it were to act in such a way its order could be challenged in the courts and would be liable to be set aside.
This is an urgent measure made necessary by a very tragic event. It would, of course, be better if there had been more time available to devote to it. If such were the case, it might have been possible to consider repealing in full the old 1921 Act. That would, however, have produced unacceptable delay because a great deal more consultation would have been necessary. This Bill introduces only those changes which are considered to be essential to enable the tribunal which is to be set up shortly to function effectively. I hope Senators will view the Bill in that light.
