I welcome the Minister of State at the Department of Justice, Equality and Law Reform, Deputy Brian Lenihan, and his officials to the meeting for the purposes of commencing consideration of Committee Stage of the Tribunals of Inquiry (Evidence) (Amendment) Bill 2003.
Tribunals of Inquiry (Evidence) (Amendment) Bill 2003 [Seanad]: Committee Stage.
Section 1 agreed to.
SECTION 2.
Amendment Nos. 2 to 5, inclusive, are related to amendment No. 1 and all may be discussed together by agreement.
I move amendment No. 1:
In page 3, subsection (1), line 16, to delete "subsection" where it firstly occurs and substitute "subsections".
In regard to amendment No. 1, the proposed section 2 of the Bill amends section 6 of the Tribunals of Inquiry (Evidence) (Amendment) Act 1979, as amended by the similarly entitled Act of 1997. Amendment No. 1 is essentially a drafting point to ensure consistency with amendment No. 3 which proposes to amend section 2 by inserting a new subsection (1B). It essentially involves the insertion of the expression "subsections" for the word "subsection" where that word first occurs.
Amendment No. 3 is also a proposed amendment to section 2 of the Bill. It essentially provides for the insertion of a new subsection (1B). Following further advice from the Attorney General since the passage of all Stages of the Bill in Seanad Éireann in late 2003, it was considered a new subsection was necessary to ensure that paragraph (b) of subsection (1A) could not have the result of limiting the effect of the amended section 6(1) in regard to the matters which can be taken into account by the chairperson when making determinations in regard to costs. This is a technical amendment because the Attorney General has advised the Minister not to insert any expression in section 2(2) which would result in limiting the effect of the powers and matters which can be taken into account by the chairperson of the tribunal when making determinations in regard to costs.
The purpose of amendment No. 2 is to make paragraph (b) clearer. The paragraph states that in determining costs the sole member or chairperson shall have regard to the report of the tribunal. This amendment is designed to ensure that the person determining costs also has regard to other factors, as already provided for in section 6(1) of the 1979 Act. The intention behind the amendment is to ensure that the measure is comprehensive.
Amendment No. 4 is largely a technical amendment which is consequential on a later amendment which proposes to change subsection (2) into subsection (1B). In regard to amendment No. 5, when subsection (1A) is inserted into the 1979 Act, it should be accompanied by section 2. Subsection (2) strengthens subsection (1) and they should be read together. My amendment would also be of assistance when it comes to preparing a statute law restatement of these Acts.
I appreciate the efforts of Deputies McGrath and O'Keeffe to improve the Bill. These amendments are similar to ones which were moved on Committee Stage in Seanad Éireann and mentioned on Second Stage in the Dáil. The Government undertook, in both the Seanad and the Second Stage discussion in the Dáil, to consider these and other reasonable amendments. That consideration was undertaken by the Department in conjunction with the Office of the Attorney General which has been fully involved in the drafting of the Bill. I am sure Deputies can appreciate why the Office of the Attorney General has taken a very intimate interest in the drafting of this measure.
Amendment No. 2 is unnecessary. Amendment No. 3 seems to achieve the purpose aimed at by the Deputy in this amendment, in other words, that no limit would be placed on the chairperson of a tribunal in his or her consideration of matters. That point seems to be addressed by Government amendment No. 3, although I accept that it is worded differently.
Amendment No. 4, as Deputy McGrath fairly acknowledged, is a drafting point which I am advised does not add anything to the clarity of the Bill. Amendment No. 5 appears to relate to a drafting point to cover an eventuality which, to my mind, is covered by the provisions of subsection (1A)(a). To refresh Deputy McGrath’smemory on this aspect, the amendment seeks to extend the range of matters to be considered by the tribunal chairperson to include tribunals which have made or reported on a determination of factual matters but which have not made determinations on the apportionment of costs. That is stating with greater particularity the general matter which the Bill seeks to address. In devising the legislation we are not just dealing with the particular instance which has given rise to it. We are also devising a code to deal with it were it to happen in the future. The particular formula used by the Deputy in amendment No. 5 is already fully comprehended by subsection (1A)(a) which provides for the sole member or chairperson to make an order in regard to any costs referred to in that subsection that were incurred before his or her appointment as sole member or chairperson and that have not already been determined in accordance with that subsection. The wording already in the Bill appears to include with greater generality the wording proposed by the Deputy in that amendment.
Amendment agreed to.
Amendment No. 2 not moved
I move amendment No. 3:
In page 3, between lines 27 and 28, to insert the following:
"(1B) Paragraph (b) of subsection (1A) shall not be taken to limit the matters to which regard is to be had under subsection (1).".
Amendment agreed to.
Amendments Nos. 4 and 5 not moved.
Section 2, as amended, agreed to.
SECTION 3.
Amendment No. 7 is related to amendment No. 6 and both may be discussed together by agreement.
I move amendment No. 6:
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.".
These amendments relate to section 3 where, if the sole member or chairperson considers it appropriate, he or she may apply to the High Court for directions relating to the performance of the function of the tribunal. I see some difficulty in that the section as drafted gives the fairly simplistic instruction that the tribunal can apply for direction to the High Court and the High Court can grant that direction. There is no reference to the rights of those who are likely to be affected once that direction is granted. Clearly, anyone likely to be affected by a High Court order should be on notice of the application, except in the very limited case where the tribunal may wish to do something without notice, such as, for example, order the urgent preservation of documents which might be destroyed. Apart from such limited cases as are already provided for in the amendment, all other applications should be on notice and anybody affected should have a reasonable opportunity to make submissions to the High Court. While the section allows for application to the High Court by the tribunal, once that direction is given there should be an opportunity for the person affected to be put on notice and allowed to make a submission.
Amendment No. 7 looks at the distinction between direction and orders. Section 4A(2) draws a distinction between directions and orders. As we all know, orders are binding but what exactly are directions? The purpose of the amendment is to make clear that directions are binding on the tribunal and also to reinforce the point that other persons should be put on notice of the High Court application by stating that a direction would be binding on any other person who has notice of the application to the High Court. Clarity is required.
Two fundamental fallacies pervade the Deputy's amendments. One is that in proceedings before a tribunal of inquiry established by the Oireachtas in this form, the parties are not ascertainable as a matter of definite fact at any stage. There are definite parties in any civil or criminal proceeding before the court — there are the people proceeding at the suit of the Director of Public Prosecutions against a named accused in a criminal matter and there are parties constituted before a court in a civil matter. In a tribunal of inquiry, there are no parties. The tribunal accords representation to different parties and therefore the chairman or members of the tribunal are in a radically different position from a court of law regarding the parties before them. To impose an obligation on a tribunal as a matter of express law to give notice to any person is to impose an impossible burden on the tribunal because it cannot say with certainty who is affected by the determinations of fact it is making. It has to consider a very wide range of possible persons. For example, when examining the subject matter of the inquiry that has given rise to this legislation, the Deputy will be well aware of the very wide range of parties who have fallen within the compass of that tribunal.
The second fallacy is that the courts do not always observe the rules of natural justice. This also applies to tribunals of inquiry. They are constitutionally enjoined to do so and therefore one does not have to write into the legislation that the tribunal must observe the rules of natural justice. It is such a fundamental feature of any inquisitorial proceeding, whether it be a tribunal or an accusatorial proceeding before a court, that the rules of natural justice must be observed. To include an express provision that a tribunal must serve notice is to miss the point that the tribunal will be and must be cognisant, as a matter of law, of its obligation to observe the rules of natural justice.
Were we to accept this amendment, it would put an impossible burden on the chairman of a tribunal who is seeking to exercise the valuable power being given to him or her under section 3, namely, the power to have recourse to the High Court for direction so he or she can have legal and constitutional clarity regarding how he or she is proceeding. Were we then to include this superadded obligation to give notice of a proposed application, the chairman would have to identify and consider a wide range of persons who might conceivably be affected by his or her direction. There presumably would be parties before the tribunal at the time of making the direction — they are on notice of it — but the Deputy's amendment would impose on the tribunal the much wider duty of having to consider all the likely persons throughout or outside the jurisdiction who might be affected by the decision to simply seek the advice of the High Court on a point of law. There would be considerable logistical difficulties imposed on the tribunal in attempting to identify such a person or classes of persons. It is very difficult to think of any comparable requirement.
The power given to the High Court under section 4A(2) regarding the giving of directions upon application from the tribunal also includes a provision that the High Court may make such orders as it considers appropriate. It must also follow the rules of natural justice. On first hearing the application, the High Court can make an order directing that the motion be served on specified parties or classes of parties. That 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 an application. The High Court would be in a much better position after examining the application to make an order directing that the motion should be served on any particular party, if necessary adjourning the application if appropriate to hear a submission.
Amendment No. 7 seeks to introduce an explicit provision that directions, once received from the High Court, should be binding on the tribunal and on any other person concerned. I do not accept that we require such an amendment because if a tribunal seeks directions from the High Court, it is implicit, upon receipt of such directions, that it will comply with them. Non-compliance with the court's directions by a tribunal which sought them in the first place would be outlandish and would no doubt be amenable to judicial review by affected third parties in any event. The Attorney General concurs with my views on both of these amendments.
Amendment, by leave, withdrawn.
Amendment No. 7 not moved.
Amendments Nos. 8 and 9 are related and may be discussed together, by agreement.
I move amendment No. 8:
In page 5, between lines 22 and 23, to insert the following:
"(6) This section applies to all tribunals irrespective of their date of appointment.".
This amendment is to introduce plain English to the legislation. Its wording is a substitute for the existing text. It is very worthy of consideration. Amendment No. 9 is consequential on amendment No. 8.
The substance of this amendment is already captured in section 2(2) of the Bill, which states:
The amendment effected by subsection (1) of this section applies to—
(a) tribunals appointed, and
(b) costs incurred,
before or after the passing of this Act.
As the Deputy's proposal does not distinguish between tribunals appointed and costs incurred, the precise point that generated this legislation is not addressed in plain English in the amendment moved by him. He is simply providing a more global provision that the section apply to all tribunals irrespective of the date of their appointment. While I appreciate the efforts of Deputy Jim O'Keeffe in this regard, I do not believe it would add anything to the already clear provision in this section. There is also a clear provision in this regard in section 3 because the amendments affected by the subsection apply to tribunals appointed before or after the passing of the Bill.
Amendment, by leave, withdrawn.
Amendment No. 9 not moved.
Section 3 agreed to.
Section 4 agreed to.
Title agreed to.
Bill reported with amendments.
I thank the Minister of State and his officials for attending.