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SELECT COMMITTEE ON JUSTICE, EQUALITY, DEFENCE AND WOMEN'S RIGHTS debate -
Thursday, 2 Apr 2009

Tribunals of Inquiry Bill 2005: Committee Stage (Resumed).

This meeting has been reconvened for the purpose of the consideration by this committee of the Tribunals of Inquiry Bill 2005. I welcome the Minister for Justice, Equality and Law Reform, Deputy Dermot Ahern, and his officials to the meeting.

In terms of disposing of the Bill, is it agreed that we will continue our deliberations on the Bill until 1 p.m. at which time we will review progress? Agreed. Obviously, we will suspend for any vote called in the Dáil.

NEW SECTION.

Debate resumed on amendment No. 44.
In page 17, before section 20, to insert the following new section:
20.—(1) This section applies to information communicated to a person, for publication to another, for the purposes of journalism or another purpose of importance in the public interest, on an understanding that its source would be treated as confidential.
(2) A tribunal shall not require a person to disclose, nor shall a person be guilty of an offence for refusing to disclose, the source of any information to which this section applies given by that person to the tribunal, unless the tribunal is satisfied that disclosure of the source is essential in order to protect the constitutional rights of some other person and outweighs the public interest in preserving the confidentiality of the communication.
(3) Subject to the foregoing provisions of this section, a tribunal may at any time adjourn its proceedings for the purpose of receiving from a person otherwise than in public information to which this section applies.
(4) Save for the purpose of a tribunal directing the course of its inquiries, no finding of fact shall be made or inference drawn, adverse to the interests of any person, upon uncorroborated information to which this section applies.".
—(Deputy Pat Rabbitte).

As I set out on the last occasion, the main purpose of this amendment is to ensure that tribunals do not unnecessarily intrude on journalistic and other confidences. I set out the arguments why the Minister, in so far as I can understand him, has said that essentially the Supreme Court is seized of the same issue and will hand down its decision imminently and that it would be would be wrong for him to accept an amendment in those set of circumstances. I am not sure that is a compelling argument for a number of reasons. I recall us legislating in anticipation of a Supreme Court decision on a few occasions in order to secure the ship of State.

The Minister says we can revisit it after we get the Supreme Court decision, but we are unlikely to revisit it. We know that this is the one shot at it. When I asked the Minister whether he would table an amendment of his own or this one, if the Supreme Court hands down its decision before Report Stage, he refused to commit himself. I think therefore that this is the one shot we have at it. Protection of journalistic sources and other confidential information is important in our democratic society. Paragraph (2) of my amendment is extremely well balanced. The Minister quoted it back to me on the last day, pointing out that the latter half of it is the negative of the amendment itself, but of course that is not true. The latter half of it qualifies that privilege. It is right that it should be qualified that a person cannot be punished or found guilty of an offence in terms of the normal use of journalistic privilege unless the tribunal is satisfied that disclosure of the source is essential in order to protect the constitutional rights of some other person or outweighs the public interest. If the tribunal is in possession of all the facts and decides that in a particular case it would be outweighed by the public interest, so be it. It is not negativing it, it is seeking to balance it. It is a restrictive amendment, far more than some journalists and others would want, but there are good reasons that should be the case. I hope the Minister has had an opportunity to reflect on it and may feel able to accept it on this occasion. I am sure he is well aware of the ancient tests for privilege, reaffirmed in our Cook and Carroll case, that laid down four stringent tests. Those tests would suggest that a fairly high hurdle has to be jumped. I hope he can accept the amendment.

As I said before, no one is denying — I think it is widely accepted by the courts and people generally — that journalists are entitled to protect their sources, but it is not an unlimited right. We are trying to improve tribunals which have been dogged by leaks and the misuse of documents that are given in confidence. For a tribunal to work properly it must have the element of compellability, the ability to force people to come and give evidence, and to discuss with them, even beforehand, the portent of what the tribunal is about. At the same time, however, it must be done in such a way that the tribunal respects the confidence of people who ultimately it might not call.

Irrespective of whether there was a Supreme Court decision, I would not be able to accept an amendment along the lines the Deputy is proposing. I think he knows well why that is the case. From the point of view of the tribunal, if it wants to compel people and in effect demand compliance with its procedures, particularly on the non-publication of material before it, the amendment would render its task unworkable. The Supreme Court decision, which I understand is due before the end of this month, may well have significant ramifications for the right of journalists to protect their sources. I am not saying that we would be hanging on the court's words concerning the portent of this particular amendment. However, irrespective of whether we were examining this issue after the Supreme Court's decision, Deputy Rabbitte's amendment is confusing in the way it is drafted. The principle he is trying to get across here is not possible, particularly in the context of tribunals. It is not possible from a legislative point of view in the wider context.

Why is my amendment confusing?

In effect, paragraph (2) is speaking against itself within itself, by stating that "A tribunal shall not require a person to disclose...".

I was minded to facilitate the Minister in moving on because he obviously will not accept my amendment. However, I will certainly not sit here and listen to him say that the amendment is confusing because that is utter nonsense. Let me read the "confusing" paragraph to the Minister: "(2) A tribunal shall not require a person to disclose, nor shall a person be guilty of an offence for refusing to disclose, the source of any information to which this section applies given by that person to the tribunal, unless the tribunal is satisfied that disclosure of the source is essential in order to protect the constitutional rights of some other person and outweighs the public interest in preserving the confidentiality of the communication." How is that confusing? It is qualifying the circumstances in which a person may or may not disclose. It is a regular feature of legislation, that the right conferred may be qualified. In this case it is qualified by a person's constitutional rights. If there could be adverse implications for such rights and it outweighs the public interest in preserving the confidentiality of that communication, it ought to do so. I do not mind the Minister rejecting my amendment, which he had set his face against from day one, but I do mind him suggesting that it is confusing. It is not in the slightest confusing.

The tribunal is not a court. The tribunal cannot determine the constitutional rights of a person. That is for the court.

The tribunal does not have to interpret the constitutional rights of a person.

It does under the Deputy's amendment.

It states "unless the tribunal is satisfied that disclosure of the source is essential in order to protect the constitutional rights...".

Of course, we have had several examples. Former Deputy Dick Spring and I appeared before Mr. Justice Hamilton who made a ruling on it in his capacity as chairman of the tribunal. That may ultimately be appealed by one or other side to the High Court, but the tribunal itself forms a view on these issues. I am saying that there is nobody better than the tribunal to form a view because it has all the facts in the case.

I disagree with the Deputy. The tribunal may possibly not be chaired by a High Court judge or another legal person. It could be headed by somebody else and it is not for them to decide. A tribunal does not decide the constitutional rights of individuals; that is up to a court. In the proposed amendment, the Deputy is giving a tribunal the ability to decide on the constitutional rights. He is putting a statutory obligation and is giving a very wide opportunity for anyone to disclose information, but is then curtailing it by using the word "unless". In effect, however, he is giving the tribunal the right to determine the constitutional rights, but it has no such right under existing legislation.

It is most unusual — it has not happened since Goodman — that a tribunal should be chaired by a person other than a judge. That is the first point.

Second, if it were, that person would have available to him or her the best expert legal opinion. Third, a tribunal makes rulings, which is what it would do in this instance. A tribunal makes rulings and finds itself seized of issues from time to time as the inquiry proceeds. Whether the matter goes to the High Court or beyond is a separate issue but the tribunal makes rulings on the facts before it.

The amendment tries to restrict the right of a tribunal to enforce compliance with its procedures in regard to non-publication.

We have a difference of opinion.

Amendment put and declared lost.
SECTION 20.

I move amendment No. 45:

In page 17, subsection (2), line 33, after "objection," to insert the following:

"and if the interested party so requests, shall conduct such questioning in private at which all other parties shall be excluded".

This was discussed with amendment No. 43. I will press it because if a tribunal is to be given a power to question parties as to why they want to cross-examine, at the very minimum a party should be entitled to exclude other parties without giving such detailed reasons. It is a cardinal principle of cross-examination that one is entitled to keep one's powder dry and not reveal to other parties the nature and scope of the cross-examination proposed. If a tribunal is to be given a power to question parties as to why they want to cross-examine, it should not be done within the hearing of other parties. The tribunal would make up its mind in hearing the case being presented to it but not alert other parties. It might compromise the cross-examination.

I agreed earlier to examine this issue before Report Stage.

Amendment, by leave, withdrawn.

Amendments Nos. 45a, 57a, 57b, 94a to 97b, inclusive, and 103a are consequential on amendment No. 93c. Amendments Nos. 88a and 93a to 93c, inclusive, are related. All will be discussed together.

I move amendment No. 45a:

In page 17, subsection (3), line 43, to delete "section 36(2)(a)” and substitute “section 39(1)(a)”.

This is a drafting amendment to provide a correct reference should amendment No. 93c be accepted.

Amendment agreed to.
Question proposed: "That section 20, as amended, stand part of the Bill."

I wish to raise a number of issues which the Minister might examine before Report Stage. Section 20(1) states, "...where a tribunal is satisfied that the evidence has already been given to it ... in written form". There are other ways to present evidence. Is an amendment needed to cover audiovisual or physical evidence and so on? That should be reflected in the legislation. The section deals with evidence in written form. Is there provision for an international dimension? Does "written form" apply only to international witnesses or a tribunal with a cross-jurisdictional element? For instance, if a tribunal was set up to deal with the Dublin-Monaghan bombings, State collusion or human rights abuses, how would the matter be dealt with? Is there a method by which witnesses could be compelled to present evidence in some form? Would the tribunal have the powers to travel abroad and sit outside the jurisdiction to take evidence, whether in written form or the other forms I mentioned?

Section 19 provides the opportunity to take evidence by video recording, sound recording or any other mode of transmission. Section 20 is designed to ensure persons who have submitted affidavits or documents do not give evidence and read the document verbatim. The intention is to save money and time.

I understand that but wonder whether it is necessary to spell this out.

We do not think so but can examine the matter again. It is reasonably well covered in section 20(1) which states, "...where a tribunal is satisfied that evidence has already been given to it, and to all persons whose constitutional or legal rights may be affected by proceedings before the tribunal ... in written form..., it shall only require that part, if any, of the evidence to be given orally in respect of which an interested party has made an objection to it...". The intention is to prevent long repetition.

The same could be said if somebody gave his or her testimony in audiovisual form and the tribunal and others were happy there was no contest about what was being stated. I do not mean to be difficult but is it necessary to cover not only written form but also audiovisual form in order that the tribunal could say the evidence was accepted and there was no objection to it and that, therefore, it did not need to be repeated? I will consider an amendment if the Minister examines the issue.

I will examine it.

Are there provisions to allow for an international dimension to an inquiry? Could the tribunal travel outside the jurisdiction to take evidence?

Nothing specific prevents that happening. Tribunals have taken evidence from outside the jurisdiction and have gone outside to take evidence. People from outside the jurisdiction have also travelled to Ireland to give evidence to tribunals. This amending legislation does not change that position.

Section 20(2) states, "The tribunal before which an interested party has made an objection referred to in subsection (1) may question the party on the reasons for the objection...". I recommend to the Minister and his officials that they examine this issue because one cannot question a person as to why he or she wants to cross-examine without obliging him or her to say what course he or she will take in the cross-examination. It is a cardinal principle that one is allowed to keep one's powder dry. I wish to underline that point prior to Report Stage. However, I do not want to pursue the matter further with the Minister now.

This only relates to evidence provided in written form. It has nothing to do with oral evidence.

Does not the same point apply? I might want to cross-examine someone on a written submission. However, I would not want to alert him or her as to from where I am coming in that regard.

Is the Minister stating that if someone lodges a written testimony and someone else objects to this, such an objection must be put in writing?

No. We are trying to tighten up the position in respect of questioning. If evidence is given in written form, the ability to cross-examine based on that is being circumscribed by what we have here. It basically relates to evidence that is not contested. Section 20(2) states:

The tribunal before which an interested party has made an objection ... may question the party on the reasons for the objection, and if after such questioning the tribunal is satisfied that the objection is not well founded, shall make a request to the party that the objection be withdrawn.

To return to the Law Reform Commission——

Where is it stated that the evidence is uncontested?

The evidence will have already been provided. For example, section 20(1) states:

[W]here a tribunal is satisfied that evidence has already been given to it, and to all persons whose constitutional rights may be affected by the proceedings before the tribunal ... in written form ... it shall only require that part, if any, of the evidence to be given orally in respect of which an interested party has made an objection ...

However, a person might provide written evidence against me in respect of which I would be extremely interested in cross-examining him or her.

That is not being prevented under the section. It is only in respect of circumstances where there is an objection or where evidence is contested.

Therefore, it is the content of the objection that will be considered by way of oral evidence.

That will involve oral examination, but only in respect of the objection and not, perhaps, with regard to the written evidence.

The section must be taken in its totality. Section 20(3) states:

Where an interested party declines to act in accordance with a request made pursuant to subsection (2), then the amount which, in the opinion of the tribunal concerned, is the difference between—

(a) the costs actually incurred by the party, and

(b) the costs that would have been incurred by the party if the party had complied with that request ...

The purpose of this subsection is to try to ensure that repetition and cross-examination will not occur in respect of uncontested evidence, namely, evidence with regard to which there has not been an objection. I understand the point the Deputies are making. Perhaps the section might be framed somewhat better and we will reconsider the position. However, the idea is to ensure that people will not rake over old ground.

As far as I am concerned, the weakness of the system lies in the fact that documentation which is lodged by way of submissions and which is then circulated to interested parties by tribunals often ends up being aired in the media and elsewhere when tribunal proceedings are ongoing. This can destroy the integrity and careers of certain individuals. To date, no conclusive evidence has been arrived at in any tribunal report. The legislation before us should protect the integrity of documentation submitted and that of the people whose names arise in evidence. It should be considered a serious breach of law if documents before a tribunal are aired anywhere outside that tribunal prior to its concluding its deliberations. As legislators, we have a serious duty to protect our citizens and I hope we can use the Bill to fulfil our responsibilities in this regard.

We are moving somewhat away from the scope of section 20.

Yes. However, I wanted to make that point. It was not possible for me to do so on previous occasions because, for a variety of reasons, I could not be present, for which I apologise.

Question put and agreed to.
SECTION 21.
Question proposed: "That section 21 stand part of the Bill."

In the event of there being a tribunal involving more than one member, and having regard to the fact that a majority report would obviously issue, in certain circumstances would it be possible to allow for a minority report?

It has never been the intention to allow for minority reports. To to so would only given rise to confusion. It would be better that a tribunal should make a decision.

Question put and agreed to.
SECTION 22.

Amendments Nos. 46 to 50, inclusive, and 68 are related and may be discussed together.

I move amendment No. 46:

In page 18, subsection (2)(d), line 20, after “report” to insert the following:

", written by one or more than one member of the division,".

This is a drafting amendment designed to correctly reference matters relating to divisions and divisional reports as provided for in section 22.

Amendment agreed to.

I move amendment No. 47:

In page 18, subsection (3), lines 21 and 22, to delete all words from and including "A division" in line 21, down to and including "subsection (2)(d)” in line 22 and substitute the following:

"Subject to subsections (4) and (5), a division of a tribunal shall provide the divisional report”.

Amendment agreed to.

I move amendment No. 48:

In page 18, between lines 24 and 25, to insert the following subsections:

"(4) Section 32(2) and (3) shall, with any necessary modifications, apply to a division of a tribunal and a divisional report as it applies to the tribunal and the final report respectively.

(5) Sections 34 to 37 shall, with any necessary modifications, apply to a division of a tribunal, the chairperson of the division and the divisional report as if—

(a) references in those sections to the tribunal were references to the division,

(b) references in those sections to the responsible Minister were references to the chairperson of the tribunal, and

(c) references in those sections to the final report (including any draft or part thereof) were references to the divisional report (including, as appropriate, any draft or part thereof).”.

Amendment agreed to.

I move amendment No. 49:

In page 18, subsection (5)(b), line 37, to delete “division,” and substitute “division.”.

Amendment agreed to.

I move amendment No. 50:

In page 18, to delete lines 38 to 40 and substitute the following:

"(6) A designation under subsection (5)(a), or an appointment under subsection (5)(b), made in respect of a division of a tribunal during the course of the inquiry shall not—

(a) affect a decision made or an action taken by the division before the designation or appointment, as the case may be, or

(b) prejudice the generality of decisions that may be made or actions that may be taken by the division subsequent to the designation or appointment, as the case may be, in respect of any matters that have been partly or wholly considered by the division before the designation or appointment, as the case may be.

(7) The requirement under subsection (2)(d) that a divisional report shall be written by one or more than one member of the division of the tribunal concerned shall apply to any draft of the report.”.

This amendment inserts new subsections (6) and (7) in section 22. Essentially, this is being done to improve the clarity of the text. The new subsection (6) deals with the legal position of any designation or appointment of a member of a division in the circumstances mentioned in subsection (5). The new subsection (7) requires that a draft report of the division of a tribunal shall be written by the members of that tribunal.

Amendment agreed to.
Section 22, as amended, agreed to.
SECTION 23.

I move amendment No. 51:

In page 19, subsection (6) line 41, to delete "investigator with the consent of the".

The net point of this amendment is that it would seem appropriate that any High Court application should be made by the tribunal rather than by an investigator.

Section 23 relates to the role of investigators appointed to assist a tribunal in carrying out its functions. With regard to subsection (6) an investigator may only make applications to the High Court with the consent of the relevant tribunal. This subsection relates to a failure or refusal to comply with a requirement made to a person by an investigator. In other words, the requirement is that of the investigator and not that of the tribunal or the member thereof. The deletion suggested by the Deputy would alter the meaning of the subsection and would give rise to some confusion as to its intention.

The subsection states that the High Court may "on application to it in a summary manner in that behalf made by the investigator with the consent of the tribunal which appointed the investigator, order the person to comply with the requirement and make such other order, if any, as it considers necessary and just to enable the requirement to have full effect." There is no big point of principle involved. I am not sure how the Minister is rebutting the basic point, which is that it would be more appropriate for the tribunal rather than the investigator to make the application to the High Court.

We discussed this with the Parliamentary Counsel, but he confirmed that the intention as per the subsection would be completely changed if we were to insert Deputy Rabbitte's amendment. I am told that the existing provision in the 2002 legislation, which creates an offence of obstructing an investigator, has been included in section 40 by way of a restatement of the provisions of existing legislation, that it must be with the consent of the tribunal.

Amendment, by leave, withdrawn.

I move amendment No. 52:

In page 20, subsection (8), line 2, to delete paragraph (b) and substitute the following:

"(b) with the consent of the tribunal, or”.

Amendment No. 52 is a drafting amendment for consistency of this particular reference in the text.

Amendment agreed to.
Question, "That section 23, as amended, stand part of the Bill," put and declared carried.
SECTION 24.

Amendments Nos. 53, 54, 59 and 60 are related and will be discussed together.

I move amendment No. 53:

In page 20, subsection (1)(b), line 17, after “ is a” to insert “significant”.

It seems that only a significant risk of prejudice should be a basis for excluding the public. This section has to do with proceedings being open to the public and ensures that "a tribunal shall not refuse to allow the public to be present at any of the proceedings of the tribunal unless ..." and it qualifies that entitlement in a situation where there is a risk of prejudice to criminal or civil proceedings that are pending or in progress. I suggest that should be "a significant risk". The test ought to be higher.

We are also discussing amendments Nos. 54, 59 and 60.

With regard to amendment No. 54, the tribunal should be able to deal with most threats of prejudice by means of a reporting restriction. We have had that experience. Amendment No. 59 refers to the same point as amendment No. 53 and seeks to insert the word "significant". Amendment No. 60 is another repetition of a point made already.

I propose to take amendments Nos. 53, 54, 59 and 60 together. Amendments Nos. 53 and 59 are related. The whole idea of the proceedings of tribunals is that they be held in public, which is merely a restatement of the existing legislation — the Tribunals of Inquiry Acts from 1921 to 2004 as they stand. The public interest is not served if, from the proceedings of a tribunal there is a risk of prejudice to criminal or civil proceedings that are taken or in progress. I do not accept that we should attempt to qualify the risk as having to be "significant". Such a standard would be unacceptable and would, probably, lead to more judicial challenges than would be normal.

Amendments Nos. 54 and 60 suggest that the risk of prejudice to civil and criminal proceedings could be removed by the operation of reporting restrictions and that the public hearings could, therefore, go ahead. That would not be a particularly practical solution in that it would, to a certain extent, go against the desire to have proceedings in public. This takes us back to Deputy Rabbitte's previous amendment relating to journalists' reportage and involvement in tribunals. To a certain extent, this amendment would curtail their ability in that regard and reporting restrictions might be used on a frequent basis. That element might be over used in order to do what Deputy Rabbitte proposes to do in these amendments.

Amendment, by leave, withdrawn.
Amendment No. 54 not moved.
Question proposed: "That section 24 stand part of the Bill."

I am amazed at the negative manner in which we always write legislation. We have never managed to master plain English. It is very difficult to follow the double and treble negatives in this Bill. I have sympathy for what Deputy Rabbitte was trying to do in his amendment and agree the tribunals should be open to the public as often as possible. However, in this Bill it is proposed that this be in the opinion of the tribunal, whereas in terms of the constitutional case covered in a previous amendment, the Minister said the tribunal could not make that opinion. Now, it can make an opinion that it be not expedient to have the tribunals open in certain cases. I believe this section concerning restricting public access to tribunals should be tied to section 31, where the tribunal would have to seek a direction from the courts to prevent the public from attending.

Another point I would make is that "open to the public" can refer to more ways than one. One meaning could be taken as meaning the public could attend. Another meaning that was covered in the Law Reform Commission report is not dealt with in this Bill. It concerns allowing the proceedings of inquiries to be broadcast. The recommendation from the Law Reform Commission — the Minister said previously that most of the recommendations were taken on board — was that the tribunals of inquiry legislation be amended to allow the discretion to permit broadcasting of proceedings as a tribunal considers appropriate, on the basis that in deciding whether to allow filming, recording or broadcasting of the proceedings of the tribunal, "the tribunal shall have regard to the following considerations ...". The commission went on to list those considerations. The commission stated that the main arguments for allowing the broadcasting of proceedings were that the public could see what was being done and could have confidence that everything was being done in order to arrive at the truth. That is the basis of the courts, that justice be seen to be done.

That recommendation is in the report of the Law Reform Commission and was included in its draft Bill in section 17(4). However, it is not reflected in the Bill before us. Will the Minister indicate why this was not considered? I also wish to indicate that I will table amendments on Report Stage to give effect to both this and the previous point I made regarding a tribunal having to get the direction of the High Court under section 31 of the Bill to allow it to restrict access.

The Deputy is correct that this was considered by the Law Reform Commission and it was one of the recommendations, although a relatively soft one. It is proposed to continue with the existing legislation which does not include a provision for broadcasting. The situation will continue whereby it is up to a tribunal to decide itself what will be its modus operandi for public hearings and whether they will be broadcast. This is the fairest option. As the tribunal proceeds, it would understand the merit or otherwise of it being broadcast. There may very well be people coming in to play to the gallery and against the interests of the tribunal, using the opportunity to make life difficult for it. Coming from our profession, we would all want everything to be in public but there may be circumstances where it might not be in the best interests of the matter in hand to have public hearings. This decision should be left to the tribunal itself, given that it has been given wide powers by the Oireachtas to investigate.

Deputy Ó Snodaigh has raised an important point in respect of sub-paragraph 1(a). In terms of sub-paragraph 1(b), I have withdrawn my amendments because the Minister stated that it would be an intolerably high standard. He also stated that it would be likely to give rise to litigation as to the difference between a risk and a significant risk. It seems he is probably correct in this regard and I will think about for Report Stage.

I think Deputy Ó Snodaigh's point is more important. To what kind of situation would they not apply? Section 24(1) states:

...a tribunal shall not refuse to allow the public to be present at any of the proceedings of the tribunal unless in the opinion of the tribunal—

(a) it is in the public interest expedient so to do for reasons connected with the matters the subject of the inquiry or the nature of the evidence to be given,

Is there any set of circumstances that might not be encompassed by this? In terms of the recent Mahon tribunal in particular, I can foresee many learned gentlemen on their feet pleading under section 24(1) (a) that the matter be held in private. Am I reading this correctly?

This is something I will consider for Report Stage. The Law Reform Commission recommends that tribunals of inquiry legislation be amended to allow discretion to permit such broadcasting of the proceedings as the tribunal considers appropriate on the basis that in deciding whether to allow film recording broadcasting, tribunals shall have regard to the following considerations: the interests of the general public; the right to information; best information; proper conduct and functioning of the tribunal; the legitimate interests of the participants; the risk of prejudice to criminal proceedings; and any other relevant conditions. We are not at cross-purposes. The tribunal has that existing power. The recommendation is that we should put down indicators, which are not conditions, to describe the reasons a tribunal would allow broadcasting of proceedings, such as in the public interest or information, the conduct of its functioning and proceedings, etc., and the interests of the parties. I will look at this for Report Stage as that might be a better way about it.

Under the existing legislation, the decision to allow something to be broadcast would be for the tribunal chairperson to decide and there are no conditions or indication of what issues the tribunal should take into account. It is at the complete discretion of the tribunal whereas this is actually setting parameters. That may be what the Deputy wishes, but I would have thought it was better to leave it with the tribunal which would take everything into account. If conditions are introduced at this stage — the Law Reform Commission has listed four conditions and a reference to any other relevant considerations — there may be circumstances where it may involve something else. This is a checklist in effect. I am not sure and perhaps it would be better to leave it to the tribunal if, for example, RTE, TV3 or some other body applied for the opportunity to broadcast. I am not aware that this request has ever been made to a tribunal.

Before Deputy Ó Snodaigh responds, if we leave aside broadcasting for a moment, I ask the Minister to reassure me that I am reading paragraph 1(a) incorrectly. It seems that there are two outs in paragraph (a) regarding whether the matter is in any way connected with the matters which are the subject of the inquiry — by definition, it must be connected — and the nature of the evidence to be given. If I were a senior counsel for a client before a tribunal, I would not have any difficulty arguing or mounting a case. For example, if a senior officeholder was before a tribunal, the nature of the evidence to be given that might expose him to ridicule or something similar would be sufficient for his counsel to be able to persuade the tribunal that it should be held in private. If that is what is intended, I am bound to be reading this incorrectly because otherwise it would mean that one could pretty much hold the tribunal in private.

That is not the intention of paragraph 1(a). Its intention relates to exceptional circumstances, for example, issues to do with national security. We have had Taoisigh and former Taoisigh at tribunals and no one has suggested for one minute that their evidence should be held in private.

Where does it state matters of security?

It does not state that, but it notes that in the opinion of the tribunal it is in the public interest expedient to so do.

With respect, it does not matter what the Minister or I think. This will be adjudicated on the written word by the High Court. There is no reference to security or any other standard — anything at all that is connected with the subject matter of the inquiry.

This is just a restatement of the existing law. There have been tribunals held under the existing law and I do not think there has been any major issue about the decision of the tribunal to have issues heard in private as opposed to in public. The existing law states that a tribunal to which this Act is so applied shall not refuse to allow the public or any portion of the public to be present at any proceedings of the tribunal unless, in the opinion of the tribunal, it is in the public interest expedient so to do for reasons connected with the subject matter of the inquiry. This is a restatement of the existing law.

Is that in the 1921 Act?

The 1921 Act as amended by the 2002 Act. It is the text as inserted by section 2 of the 2002 Act.

It was amended in 2002, so we do not have a great deal of experience of how that amendment has played out.

It applies to tribunals appointed both before and after the passing of the Act. I would hazard a guess it is more or less the same and is not in any way a restriction or otherwise.

I will come back to this matter on Report Stage because it seems to change the 1921 Act very significantly.

I will look at it when tabling amendments on Report Stage. At the end of the day it is subject to the tribunals' discretion. They can decide that the proper conduct of the tribunal would not facilitate that. However, other tribunal chairmen might and, depending on the subject matter, they might be happy to ensure that the proceedings are fully recorded, filmed or broadcast to ensure that. The purpose is to ensure that when tribunals are established, the public and the tribunal chairman are aware that is an option. We as legislators, when setting up a tribunal, should also be aware of the option for it to be permitted. Some people might encourage it to be filmed. As to somebody playing to the gallery, both sides could play to the gallery one way or other, so that is not an argument to prevent it happening. I will submit an amendment on Report Stage.

I will reconsider the issue. I would not like the message to come from here that we are opposed to the broadcasting. We are not. The Law Reform Commission report states there are strong arguments both in favour and against. It states it would not serve the public interest to state definitively that media be allowed to broadcast all the proceedings. Alternatively they should not be prohibited in all cases. It then refers to the criteria set down by Dame Janet Smith in the Shipman inquiry. It is probably following those criteria. We will look at it.

Is there not an argument that if the proceedings were broadcast what we experienced in the past ten years would have been considerably briefer?

If people know what is going on, I accept that. It may be a good reason. As Deputy Ó Snodaigh said, it might bring to people's attention the inherent ability of the tribunals existing to broadcast. I am not sure if the public knows that. I do not know if there has been an application to any of the tribunals in recent times that they be broadcast.

Either way the amendment would not make it compulsory for it to be broadcast. It would be a matter for discretion. I can consider whether it should be at the discretion of the tribunal or of those establishing the tribunal. I do not know which would be more advantageous. The arguments for and against its broadcast could be teased out prior to a decision being taken to allow it to be broadcast.

It would need to be done in such a way that they would do some although perhaps not all of the tribunal. Again, as Deputy Rabbitte said, it might make these tribunals considerably quicker. I was on the committee that looked into the Fr. Brendan Smyth issue. That was one of the first committees that was publicised. While it was great television, it was a great exercise in the public getting an understanding of how the Oireachtas worked and how that issue was dealt with by that Government. I believe it was the first televising of an Oireachtas committee and it was a very good experience.

Question put and agreed to.
SECTION 25.

Amendments Nos. 55 to 57, inclusive, are related and may be discussed together.

I move amendment No. 55:

In page 21, subsection (2)(a), line 11, after “rights” to insert the following:

"(in particular the right to good name and reputation)".

The purpose of the amendment is to bring more clarity. The right to a reputation is normally the right that would warrant protection by means of representation before the tribunal.

Does the Deputy also wish to speak to amendment No. 57?

The amendment is designed to make clear that the opinion of the tribunal regarding representation before a particular module or at a particular level may be amended after further submissions.

It is important that the matter of representation is defined. Amendment No. 56 brings an element of clarity to matters in so far as the protection of the rights of a person appearing before the tribunal would be guaranteed. From that point of view we should spell out in the legislation that a person's full legal rights will be vindicated and protected. That should form the basis of a decision in respect of representation before the tribunal.

On a more general level, it is not a question of the number of representatives or the extent of the representation per se. It is really the restriction on the cost, not the restriction on the numbers. Obviously it is possible and feasible that applicants or witnesses would have representation. However, the issue is whether such representation would carry cost to the tribunal and consequently to the taxpayer. In both this section and section 26 regarding the nature of the representation, we should not be hung up on the matter of numbers as opposed to costs. It is possible for a witness to have a full team of lawyers, including a senior counsel, junior counsel and the whole shebang. The issue is whether such costs would be covered by the tribunal and ultimately paid for by the public purse and not the numbers of representatives.

I am advised that amendment No. 55 is unnecessary. The relevant well known jurisprudence in the Supreme Court decision in the In Re Haughey case dealt with the issue of the legal and constitutional rights of people appearing before the tribunal. These include the right to a good name and reputation.

Amendment No. 56 adds nothing to the text. The tribunal will decide on the necessity of representation on application to it by the person concerned under section 25(1). The tribunal will then determine the extent of that representation according to the provisions of section 26(1). Section 26(1) in effect deals with the issue the Deputy is raising. There is nothing to prevent lawyers from participating on a pro bono basis.

Regarding amendment No. 57, I am not sure the efficiency and effectiveness of a tribunal is served by allowing a multiplicity of applications to be made to it. There is substance to the view that parties before it should get their act together from the start and not contribute to delay and the need to revise opinions already reached by the tribunal. While I will consider the suggestion between now and Report Stage, I am not sure if we can come up with something.

If in the Re. Haughey case the principles were established that conferred the meaning on the phrase as the Minister said it does, I will withdraw the amendment.

Amendment, by leave, withdrawn.
Amendment No. 56 not moved.
Section 25 agreed to.
SECTION 26.
Amendment No. 57 not moved.

I move amendment No. 57a:

In page 22, subsection (2), line 1, to delete "section 36(2)(a)” and substitute “section 39(1)(a)”.

Amendment agreed to.

I move amendment No. 57b:

In page 22, subsection (3), line 9, to delete "section 36(2)(a)” and substitute “section 39(1)(a)”.

Amendment agreed to.
Section 26, as amended, agreed to.
SECTION 27.

I move amendment No. 58:

In page 22, subsection (3), line 27, after "tribunal" to insert the following:

"and any and every member of a tribunal in the performance of his or her functions".

This section is unduly limited in the sense that it confers the privilege of the High Court on the tribunal but not on its members. There is a distinction to be made, particularly in the case of a multi-member tribunal where one member clearly does not constitute the tribunal. If privilege does not apply, an individual member is liable to be sued. We are providing for multi-member tribunals, although I am not sure how likely it is that such tribunals will be established. It is clear that when we refer to a tribunal, we should also refer to "any and every member of a tribunal".

I am advised by the Office of the Parliamentary Counsel to the Government that Deputy Rabbitte's amendment is unnecessary. The "tribunal" will always be interpreted as including individual members of the tribunal. I am advised that the inclusion of the sort of qualification proposed by the Deputy is not required. I accepted the Deputy's amendment No. 10, which provides that an order establishing a tribunal must include the names of "the member or members of the tribunal" and thereby makes it clear that they are included as individual members. The issue of privilege always extends to the members, or the sole member, of a tribunal. It is not really necessary to emphasise that.

If that is the advice of the Office of the Parliamentary Counsel to the Government, I accept it.

Amendment, by leave, withdrawn.
Section 27 agreed to.
Sections 28 to 30, inclusive, agreed to.
SECTION 31.
Amendments Nos. 59 and 60 not moved.

I move amendment No. 61:

In page 24, subsection (4), line 7, after "section" to insert the following:

"and proceedings in the Court under section 30”.

I agree with Deputy Rabbitte, who tabled an identical amendment, that an amendment is necessary to ensure that the High Court gives as much "priority as it reasonably can" to judicial reviews taken under section 30, as well as to requests from the tribunal for judicial reviews taken under section 31.

The same argument motivated my identical amendment.

Amendment agreed to.
Section 31, as amended, agreed to.
SECTION 32.

As amendments Nos. 62 to 64, inclusive, are related, they may be discussed together.

I move amendment No. 62:

In page 24, subsection (1), line 14, to delete "written report" and substitute the following:

"report, written by one or more than one member of the tribunal".

Amendment No. 62, which essentially makes a drafting point, will ensure that a tribunal's final report is written "by one or more than one member of the tribunal". Amendment No. 63 makes it clear that both the draft final report and the final report of a tribunal shall be written by one or more than one member of the tribunal. Amendment No. 64 applies the provisions of amendment No. 62 to an interim report of a tribunal.

Amendment agreed to.

I move amendment No. 63:

In page 25, between lines 4 and 5, to insert the following subsection:

"(5) The requirement under subsection (1) that the final report shall be written by one or more than one member of the tribunal concerned shall apply to any draft of the report.”.

Amendment agreed to.
Section 32, as amended, agreed to.
SECTION 33.

I move amendment No. 64:

In page 25, subsection (1), line 6, after "report" to insert the following:

", written by one or more than one member of the tribunal".

Amendment agreed to.

I move amendment No. 65:

In page 25, subsection (3), line 16, to delete "section 8(2)” and substitute “section 9(1)”.

Amendment agreed to.

As amendments Nos. 66 and 67 are related, they may be discussed together.

I move amendment No. 66:

In page 25, between lines 21 and 22, to insert the following subsection:

"(4) Apart from the circumstances specified in subsection (1) and (3), a tribunal may make an interim report at any time of its own motion.”.

This amendment is necessary because section 33, as it stands, limits the power of a tribunal to make an interim report. This proposal would allow a tribunal to make an interim report "at any time", at its own discretion. I do not understand why we would want to prevent it from doing that. During our recent history, it would have been better if we had received interim reports with a little more frequency. If a tribunal, "of its own motion", feels that it wants to make an interim report, this legislation should facilitate that.

I agree with Deputy Rabbitte in this regard. If he withdraws this amendment, we will examine the issue further in advance of Report Stage. The original purpose of publishing interim reports was to tell the Oireachtas how much progress was being made. Recent tribunals have adopted the practice of producing interim reports on particular modules. They have served as final reports, in effect, on those modules. We need to examine the matter again, in line with what has been proposed by Deputy Rabbitte in this amendment, to allow tribunals to determine when they make progress reports, interim reports and final reports.

I agree with the Minister.

Amendment, by leave, withdrawn.

I move amendment No. 67:

In page 25, subsection (4), line 22, after "shall" to insert ", with any necessary modifications,".

This drafting amendment is necessary to ensure that section 32(2) and 32(3) apply to interim reports.

Amendment agreed to.

Does Deputy Rabbitte intend to pursue his amendment No. 68, which has already been discussed with amendments Nos. 46 to 50, inclusive?

I do not have an amendment No. 68.

I apologise. Amendment No. 68 is in the Minister's name.

It may be time to break for coffee.

I move amendment No. 68:

In page 25, between lines 23 and 24, to insert the following subsections:

"(5) The responsible Minister may make a request in writing to a tribunal to be furnished with a divisional report at any time after the report has been provided to the chairperson of the tribunal under section 22(3).

(6) A tribunal shall comply with a request under subsection (5) made to it.

(7) The requirement under subsection (1) that an interim report shall be written by one or more than one member of the tribunal concerned shall apply to any draft of the report.”.

Amendment agreed to.
Section 33, as amended, agreed to.
NEW SECTIONS.

As amendments Nos. 69 to 73, inclusive, are related, they may be discussed together.

I move amendment No. 69:

In page 25, before section 34, to insert the following new section:

34.—(1) Subject to subsections (2) and (3), a tribunal shall, before submitting the final report to the responsible Minister, give a draft of the report, or the part concerned of the draft report, to any person who is identified in or identifiable from the draft report or part, as the case may be.

(2) The draft report shall set out the facts and other matters required by section 32 to be set out in it or such of those facts and other matters as are relevant to the part concerned of the draft report.

(3) The draft report or part concerned of the draft report shall be accompanied by a notice from the tribunal concerned specifying the time allowed for making—

(a) submissions or requests to the tribunal under section 35(1)(a) , and

(b) applications to the High Court under section 35(1)(b).

(4) For the purposes of this section and section 35, a person is identifiable from a draft report if the report contains information that could reasonably be expected to lead to the person’s identification.

(5) Sections 35 to 37 shall, with any necessary modifications, apply to a part of a draft report received by a person from a tribunal under this section as they apply to a draft report received by a person from a tribunal under this section.”.

Amendment No. 69 proposes that a new section 34 be inserted into the Bill to ensure that a tribunal's draft report may be sent to certain people by the tribunal. The draft report would specify any adverse findings made against the individual and recite the evidence heard in public session on the basis of which the tribunal came to its findings. The new section 34 draws from existing statute law. I expect that it will provide guidance in this regard. I hope it will avoid legal challenges. Amendments Nos. 69 to 73, inclusive, will insert new sections 34 to 38, inclusive, into the Bill. The new sections set out the procedure whereby final and interim reports may be circulated to people identified or identifiable in the reports, or part of the reports. The Office of the Attorney General has advised that the proposed new sections 34 to 37, inclusive, contain similar provisions to those in the Commissions of Investigation Act 2004 and are warranted. Different tribunals have taken different stances on the provision of draft or final reports for persons mentioned therein for comment, although not necessarily for amendment, prior to final publication. There does not appear to be a definitive legal requirement in existing tribunal legislation in this regard. For this reason, we propose to amend the legislation more or less in accordance with the Commissions of Investigation Act.

This clearly is a significant matter, albeit not one which had pricked my consciousness until now. Sending drafts of a report in advance of publication to persons affected by its contents, while possibly a good development, is a significant requirement. Perhaps the Minister will clarify whether a draft of a report would be sent to a person in all circumstances. Does this provision apply only to persons on whom a report's findings may adversely reflect? Is it correct that not all witnesses who appear before a tribunal will be entitled to receive a draft report?

Is it not the position that different tribunals have addressed this issue differently? It has recently entered the public domain that the Moriarty tribunal allegedly sent drafts of some sections of its report to certain persons. Will the Minister clarify the circumstances in which the amendment would require the circulation of reports to take place? Is it correct that the approach of the various tribunals to this issue is not uniform and that they have treated it differently?

The Minister's amendment states: "Subject to subsections (2) and (3), a tribunal shall, before submitting the final report to the responsible Minister, give a draft of the report, or the part concerned of the draft report, to any person who is identified in or identifiable from the draft report or part, as the case may be”. Amendment No. 75, a subsequent amendment in my name, reopens this question about whether under the terms of the Constitution and the 1921 Act, the final report should be laid before the Houses of the Oireachtas, as distinct from the Minister. The Minister has been around long enough to remember that this issue was highly controversial at one time. He has a great deal to be thankful for in that regard because it meant his undoubted talents were subsequently recognised when a report was sent to a particular Minister, as distinct from the Houses, with cataclysmic repercussions for the Government in question.

On the modus operandi, different tribunals have adopted different approaches to addressing the final report. The Moriarty tribunal, for instance, is adopting a particular modus operandi whereas the approach taken by the Mahon tribunal is a little different. The purpose of the amendment is to try to avoid such differences. The amendment follows the terms prescribed in the Commissions of Investigation Act 2004 which states in section 34(1): “Before submitting the final or an interim report to the specified Minister, a commission shall send a draft of the report, or the relevant part of the draft report, to any person who is identified in or identifiable from the draft report”. It also provides that a person who has received the draft report may submit to the commission a written statement or apply to the courts for a direction. We are laying down the parameters for the manner in which reports are to be dealt with by future tribunals.

On the issue of laying the report before the Houses of the Oireachtas, amendment No. 74 in my name makes it clear that while the report is submitted to the Minister, the Minister has an obligation to cause the final report to be laid before both Houses of the Oireachtas and published in a manner as the Minister thinks fit as soon as practicable after it has been submitted to him or her. The same procedure applies in the case of interim and divisional reports. It is normal practice that a report is sent to the Minister and then laid before both Houses of the Oireachtas.

Practise has varied. I recall recent cases in which the report was delivered to the Clerk of the Dáil rather than a Minister. There is no point in us pretending that this could not be an explosive issue because it has been explosive previously. The Minister first receives the report and lays it before the House subsequently. As the Minister well knows, extraordinary things can happen between a Minister, even one of the probity of the Minister opposite, receiving a report and it being laid before the Houses of the Oireachtas.

To return to the Constitution, why do we not acknowledge its intention? Given that the Houses of the Oireachtas set up tribunals, why should they not receive the report?

The responsible Minister is under an obligation as he or she "shall cause" the final report of the tribunal to be laid before both Houses of the Oireachtas as soon as is practicable——

Not before four or five Sir Humphreys have read it and extracted from it the items on which the Minister can get his or her retaliation in first.

The Deputy obviously has a cynical view of life.

I have a good memory for history, not cynicism. The amendment gives rise to a real issue.

I do not accept that. We tabled the amendment to make it obligatory on the Minister to lay the report before the Houses as soon as is practicable after it has been submitted to him or her. In effect, a Minister would break the law if he or she did not submit a report expeditiously.

As I recall, the Minister may receive a report on Friday evening at 4.30 p.m. and the House may not sit for another two and a half months. What will we do if a similar situation arises?

The Minister has obligations under the legislation which states in section 34(2): "Where the responsible Minister is of the opinion that the publication of the final report or an interim report of a tribunal might prejudice any criminal or civil proceedings that are pending or in progress, the responsible Minister shall apply to the High Court for directions concerning the publication of the report". Furthermore, where the High Court receives an application under this subsection, "it shall direct that notice thereof be given to ... the Attorney General, the Director of Public Prosecutions, and each person who is a defendant in criminal or civil proceedings". There are circumstances in which an examination of the report will be required, for example, in the context of criminal proceedings.

There is no doubt that in this business it is better to have the protection afforded by having civil servants around one than sitting opposite them. There is an answer for every scenario and the Minister knows well to what I am referring.

The Commissions of Investigation Act is quite separate and not a creature of the 1921 Act, yet the Minister is saying he is importing from it the phrase "before submitting the final report to the responsible Minister". It may well be from that Act but I contend that, as intended by the Constitution, the Houses of the Oireachtas should receive the report of a tribunal they set up. The Clerk of the Dáil should receive it. The Minister is pre-empting subsequent amendments in this regard because he is taking for granted that the report shall be submitted to the responsible Minister. Given the nature of the business we are in, that can frequently be controversial.

Again, that may well be the case from a political point of view. Other aspects must be taken into account, particularly the issue of criminal proceedings and whether some of the report's contents work against the DPP in prosecutions and against the role of the Attorney General. I do not refer to the latter's role as legal adviser to the Government but as protector of the public interest. There are aspects that must be dealt with. The modus operandi in place is to offer protections in this regard.

Is the Minister saying the Clerk of the Dáil could not be trusted to vindicate those rights? The Clerk of the Dáil would function with similar responsibility and would take advice from competent senior counsel if such questions arose. I am not persuaded that one has to hold ministerial office to discharge the responsibilities envisaged here.

With due respect to the Clerk of the Dáil, he or she is but the clerk and is only a person who, in effect, moves a file from A to B. The Minister, for the good and valid reason that he or she is responsible, accepts that the tribunal was set up on the order of the Houses of the Oireachtas. Therefore, the Minister is responsible and must take into account the other issues, including the ones to which I have referred. I refer to public interest and the question of whether the Attorney General would have a view thereon, and to the question of cutting across criminal prosecutions. The Clerk of the Dáil would not have any function in that respect.

My last word on this is that it is a very particular and important example of the Executive taking over the powers of the Parliament, which I regret. There has been a trend in the past 25 years whereby anything than can be arrogated by the Executive is so arrogated. This downgrades the status of the Parliament and constantly diminishes its stature and powers, which is regrettable.

If the legislation is enacted, will it apply to the extant tribunals?

One would hope certain guarantees pertaining to certain tribunals could be maintained. What the Minister is doing is no more than what was done in respect of the sections of the Bill we have already considered, particularly sections 4, 5 and 10, in respect of which the Minister took upon himself powers that heretofore may have been vested in the Houses of the Oireachtas. It would be entirely inconsistent of the Minister not to table such an amendment now, having regard to the powers already provided for.

I thank the Deputy. Has the Minister a final comment?

There are no new powers. The amendment states a tribunal shall, before submitting the final report to the Minister, give a draft of the report to the identifiable persons.

Yes, but the Minister was speaking on amendment No. 70.

Everybody who gives evidence to the tribunal whose identity is disclosed will get a copy, not only those who may be affected adversely.

That is determined by the tribunal.

No, it is not because "shall" is stated.

The wording refers to "any person who is identified in or identifiable from the draft report". Everybody would receive it.

Does everybody receive a copy of the report?

Everybody who is identified in or identifiable from the draft report, subject to subsections (2) and (3), receives it. If one did not send the draft report to all the relevant persons, there would be challenges. This is why it is set down that it should be sent to every person "who is identified in or identifiable from the draft report". Ultimately, this is a judgment call for the tribunal.

What is the position on journalistic privilege in that case?

Is it only the part of the report that refers to a person that is made available to him or her?

It states "a draft of the report, or the part concerned".

Therefore, it may only be the part that refers to the person.

I can examine this again. I understand the point being made and am not altogether sure whether every witness who ever appeared before a tribunal received a copy of the draft report. Perhaps that should be the position. While the tribunal may decide the testimony of somebody who has been before it was not really very relevant, the person in question may feel he or she had a point to make.

I do not have a copy of what the Law Reform Commission said on that but it might be interesting to determine whether it has a view on it.

The Minister's trenchant stance on my amendment, No. 44, is such that the numerous chaps wandering around town trying to persuade journalists of the inherent sagacity of the findings in respect of themselves will provide a lot of entertainment for a long time.

I am not necessarily laughing at what the Deputy says; I am laughing at the fact that, thanks to my officials, I have an answer for everything. Amendment No. 73 alludes to the confidentiality of reports, such that any person who receives a draft report from a tribunal will be obliged to treat it confidentially.

If that needs to be introduced by ministerial amendment, it surely indicates the farcical nature of the circumstances to date. I would have believed that labels stating "strictly private and confidential" would be on all draft reports. That a ministerial amendment must be made in this regard is indicative of the manner in which people treat the stipulation.

It is already in existing legislation. In the case of The Irish Times, the matter will be judged by the Supreme Court before the end of April.

Amendment agreed to.

I move amendment No. 70:

In page 25, before section 34, to insert the following new section:

35.—(1) A person who receives a draft report from a tribunal under section 34 and who believes that the tribunal has not observed fair procedures in relation to the person may, within the period specified by the tribunal—

(a) submit to the tribunal a statement in writing setting out the reasons for the belief and requesting the tribunal to review the draft report in light of the statement, or

(b) apply to the High Court for an order directing that the draft report be amended before the submission of the draft report to the responsible Minister as the final report.

(2) A tribunal may, after considering a statement submitted under subsection (1)(a) to it and reviewing the draft report—

(a) amend the draft report, including by omitting any part of the draft report based on evidence received without observing fair procedures,

(b) apply to the High Court for directions, or

(c) submit the draft report to the responsible Minister as the final report without making any amendments.

(3) The High Court may, after hearing an application under subsection (1)(b) or (2)(b), make any order or give any directions it thinks fit, including a direction to the tribunal concerned to do one or more than one of the following:

(a) submit the draft report to the responsible Minister as the final report without making any amendments;

(b) give a person specified by the Court an opportunity to give any evidence or make any submission that it considers should, in the interests of fair procedures, be received by the tribunal before the draft report is finalised;

(c) submit the draft report to the responsible Minister as the final report after making such amendments as the Court may direct.

(4) A tribunal shall, before submitting the final report to the responsible Minister, give notice of any amendments made under this section to any person who is identified in or identifiable from the report and who is affected by the amendments.".

Amendment agreed to.

I move amendment No. 71:

In page 25, before section 34, to insert the following new section:

36.—(1) A person who receives a draft report from a tribunal under section 34 may, within a period specified by the tribunal, request the tribunal to omit from the draft report any information provided by the person to the tribunal—

(a) that the person considers to be commercially sensitive, and

(b) the disclosure of which is not, in the person’s opinion, necessary for the purposes of the inquiry.

(2) A tribunal, after considering a request made to it under subsection (1), shall review the draft report and may, if satisfied that the information is commercially sensitive and that its disclosure is not necessary for the purposes of the inquiry, omit the information from the final report.

(3) For the purposes of this section, information is commercially sensitive if its disclosure could reasonably be expected to—

(a) materially prejudice the commercial or industrial interests of the person who provided that information to the tribunal or of a group or class of persons to which that person belongs, or

(b) prejudice the competitive position of a person in the conduct of the person’s business, profession or occupation.”.

The amendment provides the possible amendment of draft reports to preserve the confidentiality of sensitive commercial information.

Amendment agreed to.

I move amendment No. 72:

In page 25, before section 34, to insert the following new section:

37.—A person who receives a draft report from a tribunal under section 34 shall not disclose its contents, or divulge in any way that the draft report has been sent to that person, except—

(a) with the prior consent of the tribunal, or

(b) to the extent necessary for the purposes of an application to the High Court.”.

The amendment provides for the confidentiality of draft reports.

Amendment agreed to.

I move amendment No. 73:

In page 25, before section 34, to insert the following new section:

38.—Where the responsible Minister makes a request under section 33(1) to a tribunal to be furnished with an interim report, or a tribunal is required under section 33(3) to furnish the responsible Minister with an interim report, sections 34 to 37 shall, with any necessary modifications, apply to the interim report as they apply to the final report.”.

Amendment No. 73 is a technical amendment and applies to new sections 34 to 37, inclusive, to interim reports as they apply to final reports but with necessary modifications for the purposes of that application.

Amendment agreed to.
SECTION 34.

Amendments Nos. 75 to 77, inclusive, are technical alternatives to amendment No. 74, and amendments Nos. 82 to 86, inclusive, are related. Amendments Nos. 74 to 77, inclusive and 82 to 86, inclusive, will be discussed together.

I move amendment No. 74:

In page 25, subsection (1), to delete lines 26 to 37, and substitute the following:

"(a) shall cause the final report of a tribunal—

(i) to be laid before both Houses of the Oireachtas, and

(ii) published in such other manner as the responsible Minister thinks fit,

as soon as is practicable after it has been submitted to the responsible Minister, and

(b) shall, following consultation with the tribunal, cause an interim report or a divisional report of the tribunal—

(i) to be laid before both Houses of the Oireachtas, and

(ii) published in such other manner as the responsible Minister thinks fit,

unless the responsible Minister is of the opinion that to do so would hinder or impair the inquiry.

(2) Where the responsible Minister is of the opinion that compliance with subsection (1)(a) in respect of a final report of a tribunal, or compliance with subsection (1)(b) in respect of an interim report or a divisional report of a tribunal, might prejudice any criminal or civil proceedings that are pending or in progress, the responsible Minister shall apply to the High Court for directions concerning such compliance.”.

As advised by the Parliamentary Counsel, this amendment revises the provisions in the current section 34 to permit a clearer statement of the publication process. It covers final, interim and divisional reports. I know Deputy Rabbitte has made somewhat similar proposals in his amendments Nos. 75 to 77, inclusive. I hope my amendment will meet his needs and he may wish to consider withdrawing his proposals. Amendments Nos. 82 to 86, inclusive, are drafting amendments to ensure consistency with the revised publication arrangements proposed in amendment No. 74 and essentially encompass Deputy Rabbitte's amendments Nos. 75 to 77, inclusive.

I have lost the net point of amendment No. 75 and shall take the time between now and Report Stage to look in further detail at the Minister's amendments that somewhat supplant my other amendments.

Amendment agreed to.
Amendments Nos. 75 to 77, inclusive, not moved.

I move amendment No. 78:

In page 25, subsection (3), line 39, to delete "or an interim report" and substitute ", an interim report or a divisional report".

Amendment agreed to.

Amendment No. 80 is an alternative to amendment No. 79 and both will be discussed together.

I move amendment No. 79:

In page 25, subsection (3)(c), line 43, to delete “defendant in” and substitute “party to”.

This amendment relates to paragraph (c) which refers to “each person who is a defendant in criminal or civil proceedings”. I am advised that there is a technical error in this section. As the section refers to both civil and criminal proceedings, it may be that a plaintiff in civil proceedings would be affected by the High Court application, not just a defendant. The amendment ensures all parties, be they plaintiffs or defendants, are covered and not just defendants, as specified in the section as it stands.

My amendment is the one advised. We agree with Deputy Rabbitte on the principle of this and he is correct. We have drafted amendment No. 80 which I respectfully suggest covers the situation.

I accept that.

Amendment, by leave, withdrawn.

I move amendment No. 80:

In page 25, subsection (3)(c), line 43, after “in” to insert “or party to”.

Amendment agreed to.

I move amendment No. 81:

In page 26, subsection (5), line 10, to delete "or an interim report" and substitute ", an interim report or a divisional report".

Amendment agreed to.

I wish to advise members of a typographical error in the published list of amendments. The lead in to amendment No. 82 reads: "In page 25, subsection 5". This should read: "In page 26, subsection 5".

I move amendment No. 82:

In page 25, subsection (5), line 11, to delete "the publication" and substitute the following:

"compliance with subsection (1)(a) or (b), as the case may be, in respect”.

Amendment agreed to.

I move amendment No. 83:

In page 26, subsection (5), line 14, to delete "published" and substitute the following:

"subject to subsection (1)(a) or (b), as the case may be”.

Amendment agreed to.

I move amendment No. 84:

In page 26, subsection (6), lines 17 and 18, to delete all words from and including "the" where it thirdly occurs in line 17 down to and including "interim report" in line 18 and substitute the following:

"compliance with subsection (1)(a) in respect of the final report of a tribunal or compliance with subsection (1)(b) in respect of an interim report or a divisional report”.

Amendment agreed to.

I move amendment No. 85:

In page 26, subsection (7), lines 25 and 26, to delete all words from and including "the publication" in line 25 down to and including "interim report" in line 26 and substitute the following:

"compliance with subsection (1)(a) in respect of the final report of a tribunal or compliance with subsection (1)(b) in respect of an interim report or a divisional report”.

Amendment agreed to.

I move amendment No. 86:

In page 26, subsection (7), line 30, to delete "published" and substitute the following:

"subject to subsection (1)(a) or (b), as the case may be”.

Amendment agreed to.

I move amendment No. 87:

In page 26, between lines 32 and 33, to insert the following subsection:

"(8) Subsection (6) shall not apply to any provision of a report which is based on and relates to evidence heard in public.”.

Section 34(6) and 34(7) appear to be somewhat heavy-handed. If there is a case for national security exception, I find it difficult to see how this could apply where the evidence has been heard in public. The amendment I am advancing would provide that only findings based on evidence heard in private could ever be the basis of a decision to prohibit publication under these provisions. Perhaps I am reading it wrongly but I cannot see if the evidence has been heard in public how this prohibition could be in place.

I am advised by the Parliamentary Counsel that a report of the tribunal contains findings and not just a reference to evidence heard in public. Put more plainly, it is the facts established by a tribunal from the evidence received by it rather than the evidence per se, even if given entirely in public, that the responsible Minister needs to have regard to under section 34(6). This amendment, in seeming to make it mandatory to publish a part of the report, could present difficulties where the part concerned contains, for example, findings and not just a reference to the evidence heard in public. I suggest that section 34(6) and section 34(7) as they stand achieve the proper balance that is to be maintained between disclosure and confidentiality.

I would like to take advice on the note the Minister has put on the record. If that is the position, that is the position. However, I have some difficulty in reconciling it with the public nature of the evidence given. I withdraw my amendment pending clarification.

Amendment, by leave, withdrawn.
Section 34, as amended, agreed to.
SECTION 35.

I move amendment No. 88:

In page 26, line 33, to delete "A final report or interim report" and substitute the following:

"The final report, an interim report or a divisional report".

Amendment agreed to.
Section 35, as amended, agreed to.
NEW SECTION.

I move amendment No. 88a:

In page 26, before section 36, but in Part 9, to insert the following new section:

36.—In this Part, unless the context otherwise requires—

"application for costs" means an application which is in writing and sets out particulars of the costs being sought;

"costs regulations" mean the regulations (if any) made under section 39;

"first publication", in relation to a relevant report, means the laying of the report before both Houses of the Oireachtas;

"relevant conclusion", in relation to proceedings before a tribunal, means—

(a) the conclusion of particular proceedings before the tribunal,

(b) the conclusion of particular parts, modules or other divisions of proceedings before the tribunal, or

(c) the conclusion of all proceedings before the tribunal (including any case where such conclusion is in consequence of the dissolution of the tribunal pursuant to an order under section 10(1) or the inquiry coming to an end pursuant to section 11);

"relevant matters", in relation to a tribunal, mean—

(a) the nature and extent of co-operation given to the tribunal (including whether false or misleading information was knowingly or recklessly given to the tribunal),

(b) the findings (if any) of the tribunal,

(c) the appointment or other retention of a person with professional expertise—

(i) which was unnecessary or excessive for the purposes of assisting the tribunal to perform its functions in relation to the inquiry, or

(ii) which had no relevance to such purposes,

(d) the extent to which any costs incurred by a relevant person would have been incurred whether or not the relevant person had any dealings with the tribunal (including any case where the relevant person’s co-operation with the tribunal was given in whole or in part through an employee of the relevant person),

(e) the extent to which any costs incurred by the relevant person were disproportionate in respect of the nature and extent of co-operation required by the tribunal of the relevant person, and

(f) all other matters to which the tribunal is directed to have regard pursuant to the terms of the resolution passed by each House of the Oireachtas, or pursuant to the terms of the order under section 3(1), relating to the establishment of the tribunal;

"relevant Minister", in relation to a tribunal, means the responsible Minister or the Minister for Finance;

"relevant person", in relation to a tribunal, means a person in respect of whom the representation before the tribunal by counsel or solicitor or otherwise has been authorised by the tribunal under section 25(1);

"relevant report" means—

(a) the final report,

(b) a divisional report, or

(c) an interim report.”.

Amendment agreed to.
SECTION 36.

Amendments Nos. 89 and 90 are related and will be discussed together.

I move amendment No. 89:

In page 27, subsection (3), line 25, after "the" where it firstly occurs to insert "additional".

This is a drafting amendment designed to ensure the section is constitutional. Where a person does not co-operate with the tribunal, I am trying to ensure that he or she is visited with the additional costs incurred by his or her non-co-operation. It would clearly be inappropriate to visit the person with the entire costs of the tribunal. In our view, such a measure would be unconstitutional as it would be disproportionate. I am anxious to see that the section would be upheld constitutionally, so I wish to reword the section to make clear that what is intended is that the additional costs incurred by the non-co-operation would be visited on the individual.

We are also discussing amendment No. 90.

In view of my revised proposals with regard to the application for a determination of costs by relevant persons before the tribunal, Deputy Rabbitte may wish to withdraw his amendment on the basis that the matters concerned are now set out in a clear and more concise fashion.

As currently drafted, section 36(3) provides a tribunal with power to award costs against a person where that person has added to the duration of the hearings by knowingly or recklessly providing false or misleading information to a tribunal, or otherwise failing to provide appropriate co-operation when it was in that person's power to do so. The underlying principle of the subsection is that a person who adds to the duration of the hearings by acting in this manner shall bear all or some of the costs incurred by the tribunal as a result of the extended duration of the tribunal caused by that action. On that basic principle, it would be appear that Deputy Rabbitte is ad idem with the provisions of subsection(3).

My concern with his amendments is that they will potentially require the tribunal to identify forensically each and every additional cost arising from the actions, and to separate these costs from the costs that would have arisen had the person not acted in that manner. The effect of the amendments could be to involve the tribunal in a costly and complicated process of determining costs that, but for the actions of the person concerned, would not have arisen in the first place. They also have the potential to create fertile grounds for legal challenges.

I am satisfied that the current provisions represent a more sensible and pragmatic approach to the issue. They allow the chairperson to arrive at a percentage figure, which in his or her opinion, represents a fair estimate of the additional costs incurred. I would say that my proposed amendments for section 36 represent a better modus operandi.

I bow to the Minister's superior fire power.

Amendment, by leave, withdrawn.
Amendment No. 90 not moved.

Amendments Nos. 91 to 93, inclusive, are related and will be discussed together.

I move amendment No. 91:

In page 27, subsection (4), between lines 38 and 39, to insert the following:

"(a) the extent to which a person whose costs are in issue had an interest in the proceedings of the tribunal reasonably requiring representation, defence or vindication,

(b) the extent to which it would separate rather than joint representation of persons with similar interests was reasonable,

(c) any giving by of false or misleading evidence or information to the tribunal by the person whose costs are in issue,

(d) any failure to co-operate with or provide reasonable assistance to the tribunal,

(e) any unreasonable raising of an issue before the tribunal, whether by way of allegation, counter-allegation or defence to such an allegation, which was unfounded or irrelevant or was abandoned or not pursued by the party which raised the issue, and the extent if any to which the raising of such issue occasioned the incurring of costs,

(f) any other conduct in relation to the proceedings of the tribunal or in the course of appearance or representation before it that was unreasonably prolix, dilatory or evasive or which otherwise resulted in the proceedings being needlessly prolonged or in unnecessary costs being incurred,”.

I was seeking to make clear that any form of non-co-operation with the tribunal will be visited with adverse consequences in costs.

Amendment, by leave, withdrawn.
Amendments Nos. 92 and 93 not moved.
Section 36 agreed to.
NEW SECTIONS.

I move amendment No. 93a:

In page 28, before section 37, to insert the following new section:

37.—(1) A relevant person may make an application for costs to the chairperson of a tribunal not later than 3 months from—

(a) the date of the first publication of a relevant report, or

(b) subject to subsection (2), the date of any relevant conclusion of proceedings before the tribunal.

(2) A relevant person shall not make an application for costs under subsection (1) (b) to the chairperson of a tribunal unless the relevant person has the consent in writing of the chairperson to make the application.

(3) The chairperson of a tribunal shall not give a consent referred to in subsection (2) in respect of an application for costs sought to be made under subsection (1)(b) by a relevant person unless he or she is satisfied that there are circumstances which render it equitable that the relevant person may make an application for costs under subsection (1)(b) instead of under subsection (1)(a).

(4) The relevant Minister may make an application for costs to the chairperson of a tribunal not later than 3 months from—

(a) the date of the first publication of a relevant report, or

(b) the date of any relevant conclusion of proceedings before the tribunal.

(5) The giving by the chairperson of a tribunal of a consent referred to in subsection (2) shall not prejudice the generality of how the chairperson may determine the application for costs concerned under section 39(1).”.

Amendment agreed to.

I move amendment No. 93b:

In page 28, before section 37, to insert the following new section:

38.—The chairperson of a tribunal to whom an application for costs is made may, if he or she so considers it appropriate to do so, hold a hearing in order to assist him or her to determine the application under section 39(1) or (2).”.

Amendment agreed to.

I move amendment No. 93c:

In page 28, before section 37, to insert the following new section:

39.—(1) The chairperson of a tribunal shall, as soon as is practicable after receiving an application for costs under section 37(1) from a relevant person but, in any case, not later than 3 months from the date of receiving the application,

determine the application—

(a) subject to sections 20(3), 26(2) and 38 and to the costs regulations, if satisfied that there are sufficient reasons rendering it equitable to do so after having regard only to the relevant matters, by making an order that the whole or part of those costs (as taxed, in the case of any person represented by counsel or solicitors, by a Taxing Master of the High Court in default of agreement between the persons concerned) be paid to the relevant person by any other person named in the order,

(b) if not satisfied as referred to in paragraph (a), by refusing the application and giving the relevant person a notice stating the reasons for the refusal.

(2) The chairperson of a tribunal shall, as soon as is practicable after receiving an application for costs under section 37(4) from the relevant Minister but, in any case, not later than 3 months from the date of receiving the application, determine the application—

(a) subject to section 38 and to the costs regulations, if satisfied that there are sufficient reasons rendering it equitable to do so after having regard only to the relevant matters, by making an order that the whole or part of the costs incurred by the tribunal (as taxed by a Taxing Master of the High Court in default of agreement between the person concerned and the relevant Minister) shall be paid into or for the benefit of the Exchequer, in such manner as the Minister for Finance may direct, by any other person named in the order who, in the opinion of the chairperson, added to the duration of the hearings by—

(i) knowingly or recklessly providing false or misleading information to the tribunal, or

(ii) otherwise failing to provide appropriate co-operation when it was in that person's power to do so,

(b) if not satisfied as referred to in paragraph (a), by refusing the application and giving the relevant Minister a notice stating the reasons for the refusal.”.

Amendment agreed to.

I move amendment No. 93d:

In page 28, before section 37, to insert the following new section:

40.—(1) Subject to section 38 and to the costs regulations, the chairperson of a tribunal may, of the chairperson’s own motion, if satisfied that there are sufficient reasons rendering it equitable to do so after having regard only to the relevant matters, make an order that the whole or part of the costs incurred by the tribunal (as taxed by a Taxing Master of the High Court in default of agreement between the person concerned and the relevant Minister) shall be paid into or for the benefit of the Exchequer, in such manner as the Minister for Finance may direct, by any other person named in the order who, in the opinion of the chairperson, added to the duration of the hearings by—

(a) knowingly or recklessly providing false or misleading information to the tribunal, or

(b) otherwise failing to provide appropriate co-operation when it was in that person’s power to do so.

(2) The chairperson at a tribunal may, if he or she considers it appropriate to do so, hold a hearing for the purposes of subsection (1).”.

Amendment agreed to.
SECTION 37.

I move amendment No. 93e:

In page 28, subsection (1)(a), line 14, to delete “section 36(2)(a) or (3)” and substitute “section 39(1)(a) or (2)(a) or 40(1)”.

Amendment agreed to.

I move amendment No. 94: In page 28, subsection (1)(b), line 20, to delete “or interim report” and substitute “, interim report or divisional report”.

Amendment agreed to.

I move amendment No. 94a:

In page 28, lines 23 and 24, to delete subsection (2) and substitute the following:

"(2) Subsection (1)(b) shall not be taken to limit the relevant matters to which regard is to be had pursuant to section 39(1)(a)or (2)(a) or 40(1).”.

Amendment agreed to.
Section 37, as amended, agreed to.
SECTION 38.

I move amendment No. 94b:

In page 28, subsection (1), line 27, to delete "section 36(2)(a) or (3)” and substitute “section 39(1)(a) or (2)(a) or 40(1)”.

Amendment agreed to.

I move amendment No. 94c:

In page 28, subsection (1), lines 28 and 29, to delete "regulations under section 39" and substitute "the costs regulations".

Amendment agreed to.

I move amendment No. 94d:

In page 28, subsection (2)(a), lines 33 and 34, to delete “regulations under section 39” and substitute “the costs regulations”.

Amendment agreed to.

I move amendment No. 94e:

In page 29, subsection (3), line 1, to delete "regulations under section 39” and substitute “the costs regulations”.

Amendment agreed to.

Amendments Nos. 95 to 97, inclusive, are related and will be discussed together.

I move amendment No. 95:

In page 29, subsection (4)(a), line 7, to delete “section 36(2)(a) or 3” and substitute “section 39(1)(a) or (2)(a) or 40(1)”.

These are minor drafting amendments to section 38, and they are required for correcting references to cost regulation.

Amendment agreed to.

I move amendment No. 96:

In page 29, subsection (6), line 18, to delete "section 36(2)(a) or 3” and substitute “section 39(1)(a) or (2)(a) or 40(1)”.

Amendment agreed to.

I move amendment No. 97:

In page 29, subsection (7), line 21, to delete "section 36(2)(a) or 3” and substitute “section 39(1)(a) or (2)(a) or 40(1)”.

Amendment agreed to.
Section 38, as amended, agreed to.
SECTION 39.

I move amendment No. 97a:

In page 29, subsection (1)(a), line 28, to delete “section 36(2)(a) or (3)” and substitute “section 39(1)(a) or (2)(a) or 40(1)”.

Amendment agreed to.

I move amendment No. 97b:

In page 30, subsection (3)(b), line 2, to delete “section 36(2)(a) or (3)” and substitute “section 39(1)(a) or (2)(a) or 40(1)”.

Amendment agreed to.
Section 39, as amended, agreed to.
SECTION 40.

I move amendment No. 98:

In page 31, subsection (1)(b), line 1, after “oath” to insert “or affirmation”.

I am advised by the Parliamentary Counsel that the Interpretation Act 2005 covers this point. Therefore, the proposed amendments are unnecessary.

Doctors differ and patients die. My advice is that it is not covered by the Interpretation Act 2005. That Act only covers the definition of oath, which is stated to include affirmation in respect of all persons entitled by law to make an affirmation rather than an oath. That begs the question as to whether there is an entitlement to make an affirmation. The underlying entitlement to make an affirmation is set out in the Oaths Act 1888 which refers only to proceedings which may mean legal proceedings, rather than proceedings before bodies other than courts, such as tribunals. Therefore, there is a necessity to specify affirmation in the amendment.

I can check that. The Interpretation Act states that an oath, in the case of a person for the time being allowed by law to affirm or declare instead of swearing, includes affirmation or declaration.

Well, it ought to be capable——

We will have a look at it.

Amendment, by leave, withdrawn.

Amendments Nos. 99 to 101, inclusive, are related and may be discussed together.

I move amendment No. 99:

In page 31, subsection (1)(g), line 22, to delete “or”.

These are drafting amendments to section 40. They are consequential to the inclusion in the Bill of the new section 37.

Amendment agreed to.

I move amendment No. 100:

In page 31, subsection (1)(h), line 24, after “section 23(8),” to insert “or”.

Amendment agreed to.

I move amendment No. 101:

In page 31, subsection (1), between lines 24 and 25, to insert the following:

"(i) contravenes section 37,”.

Amendment agreed to.

I move amendment No. 102:

In page 31, lines 46 to 50, to delete subsection (5), and substitute the following:

"(5) Notwithstanding section 10(4) of the Petty Sessions (Ireland) Act 1851, summary proceedings for an offence under subsection (1) or (3) to which that provision applies may be instituted—

(a) within 12 months from the date on which the offence was committed, or

(b) within 6 months from the date on which evidence sufficient, in the opinion of the person instituting the proceedings, to justify proceedings comes to that person’s knowledge,

whichever is the later, provided that no such proceedings shall be commenced later than 2 years from the date on which the offence concerned was committed.

(6) For the purposes of subsection (5)(b), a certificate signed by or on behalf of the person initiating the proceedings as to the date on which evidence referred to in that subsection came to his or her knowledge shall be evidence of that date and, in any legal proceedings, a document purporting to be a certificate under this subsection and to be so signed shall be admitted as evidence without proof of the signature of the person purporting to sign the certificate, unless the contrary is shown.”.

I am advised by the Parliamentary Counsel that this reflects the now standard formulation as regards references to the Petty Sessions (Ireland) Act.

Amendment agreed to.
Section 40, as amended, agreed to.
Section 41 agreed to.
SECTION 42.

I move amendment No. 103:

In page 32, between lines 26 and 27, to insert the following subsection:

"(3) Section 8 shall apply to an existing tribunal subject to the substitution of reference to 30 or 60 days from the commencement of this section for the reference to 30 or 60 days from the establishment of the tribunal.”.

The proposed amendment would require an existing tribunal to provide an estimate of costs and duration within 60 days of the enactment of the Bill. Given the historical context involved with regard to current tribunals, I do not believe this would be a useful addition at this stage, particularly as practically all tribunals, with the exception of the Smithwick tribunal, are nearing completion.

How stands the amendment?

Like the tribunals, almost finished.

Amendment, by leave, withdrawn.

I move amendment No. 103a:

In page 32, subsection (4)(a), line 20, to delete “regulations under section 39” and substitute the following:

"the costs regulations within the meaning of section 36".

Amendment agreed to.
Section 42, as amended, agreed to.
Section 43 agreed to.
SECTION 44.

I move amendment No. 104:

In page 33, subsection (2), lines 14 and 15, to delete all words from and including "section" in line 14 down to and including "Act 1937" in line 15, and substitute "section 26 of the Interpretation Act 2005".

This is a technical amendment required in subsection (2) to delete the reference to section 20 of the Interpretation Act 1937 and substitute section 26 of the Interpretation Act 2005, consequent on the amendment of the latter Act.

Amendment agreed to.
Section 44, as amended, agreed to.
SCHEDULE.

I move amendment No. 105:

In page 33, between lines 37 and 38, to insert the following:

"New section 44A of Commissions of Investigation Act 2004.

5. The Commissions of Investigation Act 2004 is amended by inserting the following after section 44:

"Legal proceedings not to fall on dissolution of commission.

44A.—The dissolution of a commission pursuant to section 43(1) or an order under section 44(1) shall not of itself cause any civil or criminal proceedings relating to the commission that are pending or in progress to be discontinued or otherwise fall.".".

Amendment agreed to.
Schedule, as amended, agreed to.
Title agreed to.
Bill reported with amendments.

I thank the Minister and his officials for attending today and on the other days on which we discussed the Bill. I also thank my colleagues on the committee for their co-operation.

Bill reported with amendments.
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