I, too, welcome the setting up of this inquiry and the appointment of Mr. Justice Lynch who will chair the inquiry. I am not entirely convinced, however, by the Minister's comments on why the motion does not include a specific proposal that the tribunal be enabled to make recommendations and I would like to refer in some detail to the reasons I would have welcomed the framing of the motion in terms of enabling the tribunal specifically to make recommendations. That would have been in line with the previous motions of a comparable sort establishing tribunals of this kind.
Resolutions of both Houses on 6 and 8 March 1979 established the Whiddy Island inquiry. The terms of the resolution were as follows:
That it is expedient that a tribunal be established for—
1. inquiring into the following definite matters of urgent public importance:
(1) the immediate and other causes of, and the circumstances of and leading to, the explosions and fires on and in the vicinity of the ship Betelgeuse and the jetty of the terminal of Gulf Oil Terminals (Ireland) Limited at Whiddy Island, Bantry, in the County of Cork on the 8th January, 1979.
(2) the circumstances of and leading to the loss of life on and in the vicinity of the ship and jetty on the 8th January, 1979,
(3) the measures, and their adequacy, taken on and before the 8th January, 1979, on, in the vicinity of and in relation to the ship and at, in the vicinity of and in relation to the terminal to prevent, and to minimise and otherwise to deal with—
(a) fires and explosions of the kinds aforesaid, and
(b) the occurrence of circumstances of the kinds that led to the loss of life aforesaid;
There was a second part of the resolution which was framed as follows:
2. making such recommendations (if any) as the Tribunal, having regard to its findings, thinks proper.
I would have felt that this was an occasion where it would have been very appropriate and very helpful to have that addition to the motion as it stands, enabling the tribunal to make any recommendations which it might wish to do, having regard to the findings it might make.
Before turning to the reasons why I think this is particularly appropriate in relation to the inquiry into the Kerry babies deaths or the circumstances surrounding them, let us look at how the tribunal which was ultimately established to examine the Whiddy Island tragedy exercised those powers. Chapter 23 of the long report compiled by the tribunal under the chairmanship of Mr. Justice Declan Costello is devoted to recommendations and it begins with an introduction explaining the scope of the recommendations. This is highly relevant to the possible scope of the tribunal which we are setting up now because at paragraph 23.11 of the report the tribunal explains why some of the recommendations go into matters subsequent to the Whiddy Island inquiry. The introduction states:
Some of the Recommendations which follow, if found to be acceptable, can be implemented by means of Regulations under the Dangerous Substances Act, 1972.
It was submitted by Counsel instructed on behalf of the Attorney General that the adequacy or otherwise of the Dangerous Substances (Oil Jetties) Regulations, 1979, did not form part of the considerations of the Inquiry being undertaken by the Tribunal because the resolutions passed by the Houses of the Oireachtas referred to the establishment of a Tribunal which would inquire, inter alia, into “measures, and their adequacy”, taken on or before the 8th January, 1979. As the 1979 Regulations came into force after that date it was submitted that their “adequacy” could not be considered by the Tribunal.
The Tribunal considers that as it can make any recommendations which it thinks fit having regard to its findings, it has power to make recommendations on means of strengthening the statutory control and supervision of oil terminals even if such recommendations will involve the amendment and extension of the 1979 Regulations. The Tribunal did not understand Counsel for the Attorney General to submit otherwise.
There was an example where a tribunal of inquiry was established and following its establishment regulations were passed in an area which was broadly being examined by the tribunal of inquiry. Because the tribunal of inquiry was specifically enabled by the resolution of both Houses to make recommendations it felt it was empowered to, and did make recommendations in relation to the 1979 regulations. This is a clear example of where it is expressly helpful when establishing the tribunal of inquiry to ensure that there is an enabling clause. Obviously, if the tribunal does not see fit to make any recommendations that is a matter for the tribunal. At the same time in this extremely important area it would seem very desirable that there would be the expressed power and capacity in the tribunal to make whatever recommendations it saw fit in the body of the report. If one looks at the model of the Whiddy Island tribunal there were 45 recommendations made by the tribunal of inquiry, a number of which recommendations have not yet been implemented, but they are nonetheless as part of the output and public record of the tribunal.
Similarly, two years later, in February 1981, there were resolutions establishing the tribunal of inquiry into the Stardust tragedy. The approach was a similar one. The resolution was divided into two parts, the first part saying that it is expedient that a tribunal be established to inquire into the following definite matters of urgent public importance and then setting out the immediate circumstances of the Artane fire. The second section is as follows:
...making such recommendations as the Tribunal, having regard to its findings, thinks proper in respect of the statutory and other provisions in relation to fire prevention, and means and systems of emergency escape from fire, their adequacy and enforcement and any other matters that the Tribunal considers relevant.
The Stardust inquiry was enabled to and did exercise the power to make recommendations.
The Minister when introducing these resolutions referred to the question of whether or not the tribunal should be enabled to make inquiries. I would submit that his arguments on this are not in fact entirely convincing. The Minister gives as his main argument that if there are to be criminal charges that is a matter for the DPP; if there are to be disciplinary measures arising from the inquiry that that is a matter for the Commissioner. There is no argument about that, but what we are concerned about in establishing this inquiry is to look closely at the detail of what happened in relation to the incidents surrounding this particular case and to enable the tribunal to draw broad conclusions or inferences from that and, if the tribunal sees fit, to make recommendations arising from that.
The distinguished chairman of the tribunal will be a judge of the High Court and he will be perfectly aware of which is the appropriate body to pursue the possibility of any criminal prosecution or to pursue any disciplinary measures that may follow. But the tribunal itself should have a role to play in relation to the deeper and the longer-term consequences of what happened in and surrounding the events in Kerry which are the subject matter of this inquiry.
I turn now to the subject matter in order to develop in a little more detail why I feel the tribunal should have the power to make recommendations. The motion refers, first of all, in paragraph (1), to the facts and circumstances leading to the preferment on 1 May 1984 of criminal charges against a number of members of the Hayes family in connection with the death of an unnamed male infant and subsequent events which led to the deplorable charges at Tralee District Court. Paragraph (2) relates to the related allegations made by members of those families in written statements to their solicitor concerning the circumstances surrounding the questioning and the taking of statements from those persons on 1 May 1984.
In themselves, those terms of reference are broad enough to allow a very detailed consideration of all the circumstances but I would have hoped that the House, in passing this motion and enabling the establishment of the inquiry, was not just concerned about what happened in relation to the Hayes family and the members of the Garda with whom they came into contact in County Kerry on certain dates. It is surely also of the utmost importance that we have an understanding of the kinds of pressures which persons can be subjected to by being brought into a Garda station in the light of what actually happened in this particular case and in a broader sense what may be the effect on persons being interrogated while being detained in Garda custody. I should have thought that the fact that a tribunal of inquiry is being established, which is a very elaborate, very costly, and a very time consuming process, means that we must give it the power to look very closely at what is the effect on an ordinary citizen, on a man or woman or young person, of being brought in and questioned in a Garda station. Therefore, in looking at what happened in relation to the Kerry incident the tribunal could also avail of any research or any examination which has taken place of the possible effects of interrogation in detention and the effects of being kept for sustained periods without perhaps knowing what the outcome is going to be and where there is constant questioning.
In this regard the tribunal — I ask the Minister to respond specifically to this and to say if this will be possible — I hope would be able to look at the research that has, for example, been carried out by Amnesty International into the potential effect of periods of detention, of sustained periods of interrogation on persons. This is the kind of empirical research which we very badly need. We need to know what are the potential effects of bringing people into custody and the effect of prolonged questioning of a person in isolation from others whom the person may know are in the Garda station, and the putting of certain matters to the person. It is not enough, in my submission, to resolve some of the factual issues in the Kerry case that may go some way towards explaining how detailed statements were made by members of a family in relation to the alleged murder of a baby which it appears for scientific reasons, among others, they were not in a position to have carried out or to have any part in. That appears to be the situation. As yet we do not know definitively what the result of the outcome of the inquiry will be.
It is not enough to know just the nitty-gritty of what happened in the Garda station in Kerry. If we are establishing a tribunal of inquiry it should also be in a position to assess what the potential effect can be, why it is that it is possible for a person, after a certain period of that kind, to make what appears to be completely false statements. That just does not happen in one isolated case down in County Kerry. That is a potential danger. Nor does it always happen to anybody taken in for questioning by the Garda; of course not, but in so far as there are potential risks, in so far as the process can be disorientating, can be an occasion of very considerable pressure on the individual, these are the kind of things that we must know about if we are to provide the adequate safeguards and the necessary measures to ensure that there will not be a repetition of the incidents in Kerry.
Another cause of concern about the terms of reference here is that they are to too great an extent narrowly focused on the circumstances surrounding the Kerry babies deaths. It is proper that that would be the subject of the inquiry but it is extremely important in establishing a tribunal of inquiry that the tribunal be able to come forward with recommendations and with conclusions from the inquiry which have a broader and longer-term implication.
The Minister referred to the fact that there has been considerable debate in both Houses of the Oireachtas in the context of the debate on the Criminal Justice Bill on this whole area of the safeguards which would be considered to be necessary and desirable for persons detained in Garda custody. He also said that there would be a further opportunity for both Houses to consider this area and these issues in the context of the Bill establishing an independent complaints machinery and also the draft regulations under section 7 of the Criminal Justice Act. That is true, but there again the debates that have taken place in both Houses have not looked in a detailed and structured way at the effect of periods of detention on people who are unaccustomed to a Garda station. It is slightly different in the case of the hardened criminal who might be well aware of all the surrounding circumstances of being detained and who may be very clever and very cute about saying absolutely nothing and who may be able, in fact, to play the system for all that person is worth.
I am concerned about the ordinary citizen in the circumstances, as one understands them, of the members of the Hayes family who find themselves in a Garda station being questioned by gardaí whom they never knew before or met before and the effects that that has, apart from any possible allegations — and I understand there have been some allegations of other types of pressure being used — or can have on persons if they are kept for a long period and what kinds of pressures build up which might run the risk of inducing them to sign statements which contain matter which is completely untrue and unfounded but which they sign simply in order to get out of the pressure and the feeling of being trapped within the Garda station while they want to get home out of it.
It is extremely important that we ensure that the tribunal of inquiry will look closely and in detail at all of these aspects. I think it would be very beneficial if the tribunal of inquiry, having looked closely at these aspects and having — we hope — inquired into the research that is being carried out — I have mentioned the research by Amnesty International and there are other bodies carrying out research into the effect of detention and interrogation on persons and I think this information should be available to the inquiry — if then, in coming to certain conclusions, the tribunal decides that it wishes to make recommendations it should surely feel empowered in the same way as the Whiddy Island inquiry felt empowered, to make recommendations which might relate to legislation or regulations adopted subsequent to the establishment of the inquiry.
This is where the Whiddy Island inquiry is a very pertinent one to look at. It is a very good model for the establishment of this inquiry because, as I have said already, Mr. Justice Declan Costello in his report construed the terms of the resolution and the part of it which empowered the tribunal to make recommendations as including the capacity to make recommendations in relation to regulations which were passed after the events and after the establishment of the inquiry itself. That is something which could be of very real value here because the Minister has said that the next stage in relation to this inquiry is that he will make the necessary order establishing it and presumably the tribunal will then start to sit in January and will start to hear evidence and then it will ultimately report in a period after that. It might be hard to assess at this stage how long it will take to hear the necessary evidence and have time to make its assessment. It may very well be that at that stage the regulations under section 7 of the present Criminal Justice Act — it is hard to call it the Criminal Justice Act because we are used to calling it the Criminal Justice Bill——