This Bill is an amendment to the 1921 Act, an old statute passed during the reign of the late George V. It is not a very long statute—indeed this Bill is nearly as long. Did the Minister and his advisers give any thought to producing a totally fresh Bill, not merely a piece of legislation amending the 1921 Act? That would seem to me to have been more satisfactory, that 50 years later we should have a totally Irish statute rather than an amendment of a UK Act.
Tribunals of Inquiry (Evidence) (Amendment) Bill, 1979: Committee and Final Stages.
Question proposed: "That section 1 stand part of the Bill."
Consideration was given to what the Deputy has suggested, but to have done what he has suggested would have entailed a much longer delay in bringing this legislation to the Dáil. The Deputy will be aware that in introducing new legislation all Government Departments must be consulted to get their observations, and no matter how much goodwill one would get from the other Departments, it is a fairly slow process.
I accept that. I was not aware of the mechanics involved, but I still suggest that we should have a new Irish statute rather than an amendment of an English one.
(Cavan-Monaghan): I endorse Deputy O'Keeffe's point that it would be more satisfactory to have a complete new statute to deal with the present situation. Indeed the introduction of this Bill at this time is a classical example of never do today what you can put off until tomorrow. In 1970 it was obvious that the 1921 Act had broken down, and an attempt to amend it at that time fell foul of the Supreme Court. It has taken eight years and the Bantry Bay disaster to get this Bill into the House. I appreciate the present Government were not in office all that time but I suggest Dáil Éireann should take note of the dereliction of duty on somebody's part in not moving after 1970 when the thing was fresh, when everybody had very striking warning that the machinery for inquiries like this was inadequate.
We cannot have a Second Stage debate.
(Cavan-Monaghan): I do not intend to embark on one, but it is unsatisfactory that we should be amending general laws in this way. The House and indeed the country take this Bill to be in the context of the Bantry Bay disaster only, and I think that is unsatisfactory. It is not a good way to amend the general law. We should not be dealing with the Bantry Bay disaster only, but the general law relating to tribunals of inquiry. If anyone were to attempt to drag this out—I do not intend to do so—the Minister would reply, in effect: “Hit me now with the child in my arms. You are holding up the inquiry.” I do not think I would be discharging my duty if I did not say this is not the way to change the general law. That should have been done years ago.
I am glad that Deputy Fitzpatrick accepts portion of the blame in this instance. He was in Government for four years and nine months.
(Cavan-Monaghan): But the Minister was in office when the issue was “hot”.
Perhaps the fault is as much, if not more, the Deputy's as it is mine if we could each represent this Government and the last one. Of course what the Deputy speaks of is desirable but it is not always feasible. He knows very well from his experience in Government that there are not always staff standing by for the purpose of updating legislation at all times. Unfortunately, the resources for such activity are not available. But the Deputy knows also that if an Act is found to be unworkable it is made workable in as short a time as possible.
Although, like any other Bill, this Bill is a general measure, it was drafted mainly as a result of the Bantry disaster, a disaster that nobody could have foreseen. The Minister has assured the House that this Bill is closing the loopholes that were to be found in the 1921 and 1970 Acts. We are taking that assurance at its face value but I am satisfied to accept it in the knowledge that the Minister has had the advice of the Attorney General and of others on the matter.
Unfortunately, we had the same assurances in regard to the breathalyser legislation but there are now test cases before the courts in that regard. It is the function of Parliament to produce a Bill that is as good as possible.
I accept that fully.
Question put and agreed to.
SECTION 2.
Question proposed: "That section 2 stand part of the Bill."
There are two matters on this section on which I should like to hear the Minister. The section provides that the tribunal may consist of one person or of more than one person. This gives rise to the thought that the tribunal may consist of two members or of three members and it raises the question of decisions, majority or otherwise. I presume what would be in mind in the event of there being more than one member is that there should be an uneven number, possibly three, but that is not spelled out in the Bill. It would seem to be a desirable situation. Should we not write into the Bill a provision for a majority decision to apply in the event of a tribunal consisting of three people not reaching unanimous agreement? What concerns me is whether a point could be raised later in court to the effect that the decision of the tribunal would need to be unanimous. In the Supreme Court decision in the Haughey case in 1971 which, as the Minister will be aware, related to a similar type of Bill, Mr. Haughey had as one of his grounds an objection to the certificate of the Committee of Public Accounts on the basis that it should have been made by way of the unanimous decision of all members of the committee. This situation was referred to by the late President, Mr. Ó Dálaigh, at page 260 of the Irish Reports, 1971. In fairness I should say that the then Chief Justice held that a majority decision suf-ficed at common law but we are not merely dealing here with a common law situation. We are dealing with a tribunal that is being set up under statute and I am wondering whether the Minister and his advisers have considered the desirability of making it clear in the Bill that in the event of the tribunal consisting of more than one member, a majority decision would suffice with, possibly, the casting vote of the chairman in the event of there being an even number of people on the tribunal.
The other point on this section is the position of the assessor. The section provides that the tribunal may consist of one or more persons with or without an assessor or assessors. The section does not deal further with the position of the assessor except in the negative fashion of specifying that he shall not be a member of the tribunal. Has any thought been given to clarifying in a more cogent way the position of the assessor by defining his position and his functions, whether, for instance, he is entitled to participate in the hearing other than in an advisory capacity? I could envisage a situation in which some complex and technical evidence would be given during an inquiry when it might be of assistance to have an assessor question a witness on such evidence. What is envisaged in respect of the assessor? Would it have been wiser to spell out his position in more detail? As the Minister will undoubtedly have considered this situation, he will be able to supply the answers to these points.
The section is clear regarding the composition of the tribunal in stating that the tribunal may consist of one member only or of more than one member. The Principal Act was silent on this point and there was a doubt as to whether it authorised a one-man tribunal. This section provides for the appointment also of one or more assessors. This is a point also on which the Principal Act was silent.
The function of the assessors is to consult with and advise the tribunal. Their role could be of great value in relation to an inquiry or to evidence of a technical nature. The section provides that the assessors shall not be members of the tribunal. Therefore, they would not be involved with the tribunal in their findings. There is analogous procedure in the High Court whereby a judge of that court can appoint an assessor.
Would the assessor be entitled to cross-examine a witness or participate in the actual proceedings by way of questioning witnesses and so on?
That would be entirely a matter for the tribunal. If they thought it necessary they could ask the assessor to make inquiries or carry out any cross-examination. His function is to help the tribunal.
Is there a danger that the assessor would be in a quasi-judicial position?
No. His function is to help and advise the tribunal. The tribunal would lay down its own procedures in this matter. I am satisfied it is not appropriate to spell out the procedures, it is left to the tribunal to decide how best the assessors can help them to do the job they have to do. It is not always necessary to spell out that a majority decision is necessary. It has always been the practice that the majority decision is what comes up. The Deputy will appreciate that only one report is made.
Will the tribunal president have the right to determine whether the assessors will have the right to ask questions? I assume that the assessors would have special qualifications to deal with the subject matter of any inquiry that may arise. In the same way, I assume that the assessors in the pending inquiry in Bantry will be suitably qualified and, that being the case, one would assume they would have the right to ask technical questions of witnesses. Their knowledge in that field would surely supersede the knowledge of the presiding judge or chairman. The point is whether they must give their advice to a member of the tribunal and let him ask the questions or whether they may have the right to ask the questions directly themselves. It would be highly desirable that the assessors, by virtue of their qualifications, should have the right to question witnesses directly even though they have no say in the final report of the inquiry.
The Deputy is quite right in that. The assessors will have that right. It will be given to them by the tribunal. Their function is to help.
To help in their special knowledge of the subject.
Yes.
(Cavan-Monaghan): I must confess I have not seen the original 1921 Act. I assumed that there was something in that Act about assessors but there is nothing in it concerning assessors at all. It appears to me that section 2 is pretty loose and it just deals with assessors as if everybody should know all about them and as if the law in regard to assessors was already laid down. Perhaps assessors are defined in some other Act but if not then section 2 is inadequate and assessors need to be defined. Their duties and rights would need to be spelled out.
The rules of the Superior Courts take the same line as is taken in this Bill. They state that the judge may appoint assessors in any admiralty action either at the instance of any party or in case he shall deem it requisite for the due administration of justice. Order 36, Rule 40 states that trials with assessors shall take place in such manner and upon such terms as the court shall direct.
(Cavan-Monaghan): Section 4 of this Bill would probably come to the assistance of the tribunal. It states that the tribunal may make such orders as it considers necessary for the purposes of its functions and it shall have in relation to their making all such powers as a judge of the High Court.
Deputy Fitzpatrick has put his finger on the situation. It appears to me that the assessor is introduced into the tribunal procedure for the first time. It seems to have been left somewhat afloat. I am not an expert in parliamentary draftsmanship but I would have thought that he should have been covered by some definition and that the scope, role and functions of the assessor should have been spelt out either directly or by implication. Here there seems to be some suggestion that, because a High Court judge can appoint an assessor, the same rules and regulations, role and functions in regard to the assessor will apply in the tribunal as apply in the High Court. If the Minister is satisfied that that is the situation I am happy about it.
We are not relying on section 4 for the key to section 2. We are quite satisfied it stands in its own right.
(Cavan-Monaghan): The Minister is taking responsibility for this but it appears to me to be a very loosely drafted section with assessors introduced into it on the basis that the court and the law knows all about them. “Assessors” should be defined. It should be spelt out how they are appointed and who appoints them and what their duties and functions are.
The way they are appointed is spelt out quite clearly.
(Cavan-Monaghan): Their duties and responsibilities should be spelt out.
The rules of the Superior Courts——
(Cavan-Monaghan): As Deputy Murphy said, getting back to the immediate purpose of this Bill, if ever there was a need for an assessor it will be in the inquiry that is contemplated.
I accept that.
Question put and agreed to.
SECTION 3.
I move amendment No.1:
In page 2, lines 29 and 30, to delete "document or thing" and to substitute "documents (which word shall be construed in this subsection and in sub-section (1) of this section as including things)".
In addition, the parliamentary draftsman has drawn attention to the desirability of removing the comma after the word "excuse" in line 25. This is purely of a drafting nature.
Obviously the matter of the comma is purely a drafting one. The purpose of the amendment is to delete the reference to document or thing and to refer to documents and provide that that will include things.
Under subsection (2) of section 1 of the Principal Act it is an offence for witnesses before a tribunal to refuse to produce things or documents that may be required by the tribunal to be produced. This amendment is needed in order to extend the powers of the tribunal under subsection (1) of that section to the compelling of the production of things as well as documents. At present the powers extend only to documents.
(Cavan-Monaghan): Does the amendment not delete “things”?
It does not, because the way the draftsman has it the Minister is deleting the word "thing" and construing the word "documents" as including "things".
That is right. The amendment reads:
In page 2, lines 29 and 30, to delete "document or thing" and to substitute "documents (which word shall be construed in this subsection and in sub-section (1) of this section as including things)"
Amendment agreed to.
Question proposed: "That section 3, as amended, stand part of the Bill."
I should like to make a couple of points on this section and no doubt Deputy Fitzpatrick who raised some points on it yesterday will also have a few queries to raise. It seems to me that the section, as now drafted, covers in general the points raised in the Supreme Court in the 1971 case. The 1970 Act merely referred to a refusal amounting to a contempt of court. In this section doing any of these things amounts to an offence and a person is liable to be charged with that offence in the ordinary way.
I wonder why the Minister did not consider applying more serious penalties. I could envisage a situation where it might be considered by somebody who was called before a tribunal to be worth while to chance the possibility of 12 months in jail or a fine of £500 by refusing to give evidence or produce documents or things. The matter could be of a very serious nature. I wonder whether the penalties are too light for failure to comply with the directions of the tribunal by not obeying the summons to attend, or refusing to take the oath, or refusing to give evidence or answer questions.
We cannot say this would not happen. It did happen under the 1970 Act. A witness appeared before the committee set up under that Act. He read a statement and in effect he refused thereafter to answer any questions put to him by the committee. That witness was prepared to take the chance of being hauled up before the court, which he duly was. It transpired subsequently—— possibly he was advised in this regard—that the powers of the Act were ineffective.
Here we have a procedure which will probably stand up, but are the penalties too light? Huge sums of money could be involved in the discussions before the tribunal. I do not in any way want to prejudge what will happen at the Bantry tribunal but a figure of £30 million has been mentioned as being possibly at issue in deciding the body or bodies responsible. In that context, does the offence which is now created by this Bill carry heavy enough penalties?
The Minister may say that in regard to an offence which is chargeable on summary conviction we are limited as to penalties. Two question arise here. One is whether he is satisfied that these penalties will stand up on summary conviction. Deputy Fitzpatrick raised this point yesterday and no doubt will be developing it. The second point is the one I want to develop myself. In many similar types of Bills where it is desired to have a heavier penalty it is not possible to have the Bill drafted on the basis of the offence being triable before the District Court only, but there is an alternative. Very often the alternative is that a person guilty of such an offence is triable on indictment before the superior court where much heavier penalties can be imposed.
Would it have been wiser in this Bill when the offence is created to provide that the penalty could be decided on summary conviction with the fine and imprisonment mentioned here or, at the discretion of the DPP if he felt the matter was serious enough, the accused could be tried on indictment before the superior court and face there a much heavier penalty? I have some recollection that this point came up with regard to the penalties which could be imposed for oil pollution. Perhaps it is by chance that this aspect comes into my mind, but I recollect in defending oil pollution charges years ago that a very derisory penalty was possible because the matter could be dealt with only in the District Court and £500 was the maximum fine. Changes were made. If I remember correctly the alternative I am suggesting was included and it was made possible in serious oil pollution charges to have the defendant brought before a superior court and faced with much heavier penalties. I hope the Minister sees the point I am making. It would strengthen the Bill considerably if an addition of that order were made.
How does this section relate to non-nationals, to witnesses from outside the country? Is section 3 binding on our own citizens only? At any tribunal, and particularly the one which is pending, witnesses from foreign countries may be called to give evidence. If, for instance, a person from France or Spain or any other country is called to give evidence and actually attends the inquiry but refuses to answer questions, or otherwise hinders the hearing in the opinion of the tribunal, what punishment, if any, can be meted out to such a person having regard to the fact that he is not a citizen of our State and may say the laws made in this House do not bind him?
(Cavan-Monaghan): The point I want to make is different. At first sight it may appear to be in conflict with the view taken by Deputy O'Keeffe, but it is not. Deputy O'Keeffe's trouble is that the penalties are not severe enough. Indeed, a very good case could be made for that view when we are dealing, as he said, with damage involving millions of pounds and, more serious and important, the loss of human lives.
I know why the penalties are kept at that level. The Establishment are always afraid of juries. They believe that, if they bring somebody before a judge and jury for contempt of court, their chances of getting a conviction are not as good as they are on summary trial. An excellent case can be made for the point put forward by Deputy O'Keeffe but, if you up the penalties, you get outside the realm of doubt and you must go before a judge and jury on indictment.
Yesterday I suggested to the Minister that, because a penalty of 12 months imprisonment is provided in this section, the offence created by the section will cease to be a minor offence fit to be tried summarily under Article 38 of the Constitution. In reply, the Minister told me that for the last 30 years sentences of 12 months imprisonment were provided in various Acts and imposed by district justices and that they had never been queried. I must say I was somewhat surprised to hear that sentences of 12 months were provided so frequently for summary offences. My recollection is that the 12 month sentence in the District Court was a comparatively recent thing. When one talks about a thing being comparatively recent, it depends on one's age and how far one can look back. I wonder is it imposed in defended cases or is it imposed in cases where the accused consented to the jurisdiction of the District Court and pleaded guilty?
Article 3 of the Consitution provides, subject to certain exceptions, that no person may be tried on any criminal charge without a jury. One of the exceptions states that minor offences may be tried by courts of summary jurisdiction.
(Cavan-Monaghan): It is Article 38 of the Constitution.
Yes, I meant Article 38. The Supreme Court has decided that the most important factor in determining what is minor is the punishment which the offence may attract. It is stated in several cases that a penalty of six months imprisonment does not take an offence out of the category of minor. It has never pronounced expressly on the question of 12 months. Numerous statutes passed since the foundation of the State have empowered District Courts to impose sentences of up to 12 months imprisonment. These powers are frequently availed of and have never been challenged. Examples of these powers—
(Cavan-Monaghan): I have a feeling—
The Deputy said that these only came in recent years.
(Cavan-Monaghan): I have a feeling that these 12 months sentences are only applicable where an accused pleads guilty and not in defended cases.
That is not so. Examples of these powers are found in sections 2 and 4 of the Criminal Justice Act 1951, under which in certain circumstances indictable offences can be dealt with by the District Court and are subject to a penalty of 12 months imprisonment, in section 4 of the Offences Against the State (Amendment) Act, 1972, in sections 5(4), 6(2), 7(2), 10(4) and 12 of the Criminal Law Act, 1976, and in section 27 of the Misuse of Drugs Act, 1977.
In the case of Conroy v. the Attorney General, page 411, 1965Irish Reports, the Supreme Court approved of a provision in section 49 of the Road Traffic Act, 1961, whereby a District Court was empowered to impose a penalty on conviction for drunken driving of up to six months imprisonment, a fine of up to £100 and a disqualification from holding a driving licence, and recognised that upon failure to pay a fine a District Court could impose a sentence of a further term of six months imprisonment. Though there is no decision of the Supreme Court in the matter of a summary penalty of 12 months imprisonment for an offence, it has approved of provisions under which a District Court may sentence a person to imprisonment for terms totalling 12 months.
In the case of Melling v. O Mathghamhna, page 1, 1962Irish Reports, the Supreme Court accepted that summary penalties of up to nine months imprisonment did not exclude certain customs offences from the category of minor.
With regard to the point raised by Deputy O'Keeffe, that is, the severity of the sentences, the penalty of imprisonment is considered to be a sufficient deterrent for the type of offence envisaged by the section. The procedure on indictment is more protracted. We are satisfied that the penalties are sufficiently severe.
Does section 3 apply to witnesses from foreign countries if they disobey the direction of the tribunal?
Certainly. People from other countries can be kept within the State if they are charged and they can be dealt with in the ordinary way.
Is the Minister positive that section 3 applies to foreign witnesses.
Yes.
What would be the position if a witness from France or Spain was required by the tribunal and refused to attend? Is there any procedure whereby such a person can be forced to attend?
If the tribunal sees fit, it can arrange to have evidence taken abroad.
It would depend on the co-operation of the country concerned as to whether such a witness would attend or whether evidence could be taken from such a witness.
Yes.
If such a Government had an interest in the proceedings we might get co-operation. I accept that very little can be done about such matters. We would hope that all parties concerned would co-operate. It cannot be put beyond a hope in that situation.
No.
Would it not be possible to have a heavier penalty? Appreciating the problems of cumbersome procedures in criminal trials, if the matter were not so serious the State could issue a summons and have the person brought before a District Court. If the matter were serious the State could involve the more cumbersome procedure of the criminal courts. I appreciate that even on a minor charge brought before a local court an accused would probably have the option of a trial by judge and jury. I am concerned that we do not have a situation arising under this Act which arose under the Oil Pollution Act.
With the falling value of money particularly, a fine of £500 is not very great in the context of the stake that might be before such tribunal. As the years go by it may be regarded as purely nominal and I would even say that at this stage if anything serious were involved it could be very nominal. We did have that situation in regard to oil pollution and we had to face it by way of amending legislation—perhaps Deputy Fitzpatrick was responsible for bringing in the amending legislation—where oil pollution cases were brought before the local court and these derisory penalties were inflicted. You could have a situation where it might be necessary to prosecute companies and under the Interpretation Act, I imagine a person includes a company. The company might refuse to produce documents or things. You cannot put a company in jail. If that company were directed by the tribunal to produce what they regarded as highly sensitive documents or highly incriminating documents and if the company failed to produce them they would be guilty of an offence. They would consult their lawyers and would be told that they could be fined £500. In that situation I do not think the fine they would have to pay would be the slightest indocument to them to comply with the order of the tribunal if for their own reasons they decided otherwise. From my own experience I found as a lawyer that the laws in some cases were, I shall not say virtually ignored, but certainly could not be heavily enforced because of such minor penalties. Are we walking into the same trap here? I believe there should be an alternative.
(Cavan-Monaghan): It might be taken from what the Minister said that I agreed that the penalties provided here are adequate. That is not my line. The penalties could be regarded as totally inadequate and a good case can be made for that view. I also realise that offences carrying higher penalties could not be tried in the District Court. Most Bills passed through this House create summary offences and indictable offences and in many Bills that I have seen going through here and in Acts that I have read there is a provision something like this: “A person shall be guilty of an offence and shall be liable on summary conviction to a fine of £500”—and I think there should be six months imprisonment just to be certain—“or on conviction on indictment to a fine of up to £10,000,” or perhaps £50,000 as should be here, “or five years imprisonment.” There are innumerable precedents for that sort of thing in Acts of Parliament. I do not know why it was left out here. I agree entirely with the point made by Deputy O'Keeffe that £500 to some of the people or institutions or companies that could be involved in this would be like the price of a box of matches and would not concern them.
And £10,000 would not be much more.
(Cavan-Monaghan): I said——
If we get the principle we can then talk about the amount.
(Cavan-Monaghan): I think this legislation should provide for an indictable offence also with extreme monetary penalties. I do not think the Minister need have the same fear of juries in a case like this as he might have in a smuggling case, for instance. There will be I think a far better chance of getting a conviction here.
Another point was raised about the position of people abroad, foreigners. It appears that it could happen that a company registered and based here might have indirectly in its control abroad, outside the jurisdiction, information which could be brought here through witnesses who are not resident here and ordinarily might not be under the jurisdiction of our courts. Could we in this Bill impose an obligation on a company registered here to furnish such information and evidence as is under its control whether it is based abroad or not? If that is possible this is the very type of Bill in which that provision should be made.
My original point was that I think there is doubt—I shall put it no stronger—as to whether an offence which carries 12 months imprisonment remains a minor offence. The Minister has had some research done and has told me that the Supreme Court has ruled that a sentence of six months imprinsonment does not exclude an offence from the summary category but that it has not gone farther than that. We know that the Supreme Court will decide in a case before it what it is necessary to decide in that case but will not speculate as to what it might do if it were seven months, eight months or nine months. In these days when sentences tend to be low it might well be that the Supreme Court would hold that 12 months' imprisonment removes an offence from the minor category.
The Minister should give serious consideration to three things: one is in addition to the summary offence created here, the creation of an indictable offence which would carry much heavier penalties. As Deputy O'Keeffe said, if we get the principle we can go on from there. Secondly, consideration should be given to placing an obligation on a company based here to furnish information under its control from abroad or elsewhere. Thirdly, so that we may be sure that the summary offence will not cease to be a summary offence the prison sentence in that case should be reduced to six months.
As regards the statement by Deputy O'Keeffe that you cannot put a company in jail if it refuses to co-operate or provide documentation, I think the answer is that the company is represented at the tribunal by a witness and if the witness were to say that he is not furnishing the evidence which the tribunal requests him to provide, would not the terms of section 3 apply to him? So also they would apply to the managing director or to other senior executives of the company who could also be called. We could end up by having all the directors under lock and key. Does this section not provide for that kind of happening? They cannot answer questions themselves, they must answer them through some representative, and the representative would be liable for penalties which the section carries. So would other witnesses from that type of company who would be asked to appear and similar sentences could be imposed on them, because the section does not limit the number of people who can be punished at any tribunal hearing.
What the Deputy says is correct. Under the Bill as it is I am satisfied that the penalty of imprisonment is a sufficient deterrent for the type of offence envisaged by the section. I have already said that the procedure of indictment is a much more protracted one and is very cumbersome. I recognise and appreciate fully the views put forward by the Deputies as to whether the penalties are sufficient. I accept their argument and I am prepared to give very serious consideration to their suggestions that the Bill would provide for trial on indictment and more severe penalties. I am prepared to have this examined and to deal with the matter in the Seanad if I feel that it should be changed.
I am prepared to accept it on that basis. I believe the penalties are too low. I accept the Minister's undertaking to examine it to see if he can introduce amendments in the Seanad.
Question put and agreed to.
SECTION 4.
Question proposed: "That section 4 stand part of the Bill."
(Cavan-Monaghan): What has the Minister in mind in putting this section into the Bill? It says:
A tribunal may make such orders as it considers necessary for the purposes of its functions, and it shall have, in relation to their making, all such powers, rights and privileges as are vested in the High Court or a judge of that Court in respect of the making of orders.
Could the minister give us any idea of what is behind that section?
The powers of tribunals to make orders are confined to the making of such orders as they consider necessary for the purposes of their functions. This is restricted accordingly. They are given the powers, rights and privileges that are vested in the High Court in relation to the making of orders. These are the only orders tribunals have the power to make. Administration of justice involves the determination of issues arising between parties in civil matters and the determination of guilt or innocence in criminal matters and the enforcement, where appropriate, of such determinations. Tribunals have no powers whatsoever to determine issues, whether civil or criminal, and of course no powers of enforcement. The functions of tribunals are to inquire into definite matters and to find facts. Therefore, exercise by tribunals of powers under section 4 of the Bill to make orders does not amount to the administration of justice. Even if it does, it is clearly of such a limited nature as to be within the scope of Article 37 of the Constitution.
Question put and agreed to.
SECTION 5.
Question proposed: "That section 5 stand part of the Bill."
I observe that under the Bill statements or admissions made before the tribunal shall not be admissible as evidence against the person making them in any criminal proceedings. What is the position in regard to civil proceedings? If somebody makes a statement which amounts to an admission of liability before a tribunal are we in a situation that such a statement can be admitted before a civil court? If that is the situation, will that be a restraining influence on somebody before the tribunal? Will that person be entitled to plead privilege in that situation? A point was raised in the Haughey case that statements which reflected on him were being made before the committee and that the statement which he would make to the committee could be used against him. This was all thrashed out in the Supreme Court in 1971. I imagine that this section goes into the Bill arising out of that decision, but why is it confined to criminal proceedings?
With regard to section 5, the principal Act has no corresponding provision and it is thought that at an inquiry under that Act a witness need not give evidence that tends to implicate him in a criminal offence and that the tribunal should inform him on his right to remain silent. That situation obviously could hinder a tribunal seriously in their task of finding all the relevant facts. This section removes the possibility of such a hindrance. It provides that a statement or admission made by a person before a tribunal or when being examined in pursuance of a commission or request, for the taking of evidence abroad, shall not be admissible in evidence against the person in any criminal proceedings other than proceedings under the principal Act for giving false evidence to a tribunal. Therefore, a witness before a tribunal cannot lawfully withhold evidence from them. The concluding words of the section:
... of that section) and subsection (3) of that section shall be construed and have effect accordingly.
ensure that section 1 (3) of the principal Act, which confers on a witness before a tribunal the same privileges as a witness before the High Court, will not be construed as enabling a witness before a tribunal to claim High Court privilege in relation to incriminating evidence. The words remove any possibility of a conflict between the two sections.
I accept the basic thinking behind the criminal proceedings. I do not clearly follow why it should not be extended to civil proceedings as well.
The Deputy appreciates that a witness before a tribunal is in the same position in regard to civil proceedings as he would be if he were before a court.
The tribunal is based on the investigatory and inquisitorial type system of the courts as opposed to the adversative system of a court. If somebody is called as a witness who would have been a defendant in a civil claim, such person would not be liable to answer a civil claim until a prima facie case had been made by somebody claiming against him. Here we have a situation that such a person can be summoned as a witness before the tribunal, can be made to answer questions with a penalty if he does not, and in so doing can make statements which could reflect on his civil position. I appreciate that the act protects him with regard to any criminal case.
If he did not have immunity he might not make any statement at all.
That is the point. He has immunity in criminal proceedings but he does not have immunity in civil proceedings.
The same position applies in the High Court. Section 1 (3) of the original act says:
A witness before any such tribunal shall be entitled to the same immunities and privileges as if he were a witness before the High Court or the Court of Session.
What does that mean in this context?
He has protection as regards slander and defamation.
I am concerned about protection in regard to a civil claim. The Minister makes the point that if he did not have immunity he might not be co-operative. I appreciate that the Minister has given that immunity in regard to criminal proceedings, but if this witness is not concerned about his criminal position but about maybe huge claims being made against him or possibly against his employer or company, will that witness have immunity in regard to such civil claims arising out of statements he will make to the tribunal? If he has not, is there not a danger, as the Minister pointed out, that he might not be anxious to co-operate? The Minister has covered the position in regard to immunity in criminal proceedings. Why is not a similar immunity provided in relation to civil proceedings?
I am interested in the points made. Section 5 goes far enough. A witness has immunity so far as criminal proceedings are concerned. Surely it should not be by any act of this House that we will give him immunity so far as civil proceedings are concerned. There is personal immunity so far as criminal proceedings are concerned but so far as civil proceedings are concerned I do not think the evidence given should carry immunity. It should be a matter for future courts to recall the witness or to make him answer in other courts with regard to civil proceedings. Civil immunity should not be given.
The Deputy is quite right.
(Cavan-Monaghan): There is no suggestion that immunity would be given him to the extent that he could not be called in a civil action again. Of course he could be called in a civil action again. Deputy O'Keeffe does not want the evidence given before this tribunal to be put in a civil action if one were to be brought. That is the difference.
Perhaps there was a misunderstanding.
The Minister accepts that the fact that he is providing immunity from criminal proceedings will encourage witnesses to be more free and co-operative before the tribunal. My only point in regard to raising civil proceedings is not that anybody can get total immunity from any civil claim against him but that in the same way as the co-operation which is encouraged by giving immunity from criminal proceedings would be given by extending it to civil proceedings. I am not talking of immunity from a claim being made against a person but immunity from the statements made before the tribunal being used later in an incriminating fashion against him. That is the only point and I do not wish to press it beyond that.
Question put and agreed to.
SECTION 6.
Question proposed: "That section 6 stand part of the Bill."
(Cavan-Monaghan): Section 6 provides that the tribunal or the chairman of the tribunal if he thinks it equitable to do so, and having considered all relevant matters, may award costs to a party before the tribunal and to order that the party should pay the costs of another. I am fearful that that is unconstitutional because Article 34 of the Constitution states:
1. Justice shall be administered in courts established by law by judges appointed in the manner provided by the Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public.
I do not think there can be any real doubt but that the chairman of the tribunal or the tribunal in coming to a decision whether it is right and equitable to award costs is administering justice. I do not think there can be any real doubt about that. When I raised this matter yesterday on Second Stage the Minister relied on Article 37 of the Constitution which I admit I did not refer to. Article 37 provides:
Nothing in this Constitution shall operate to invalidate the exercise of limited functions and powers of a judicial nature, in matters other than criminal matters, by any person or body of persons duly authorised by law to exercise such functions and powers, notwithstanding that such person or such body of persons is not a judge or a court appointed or established as such under this Constitution.
I concede that this is something that must be taken into consideration but in my opinion the all-important word there is "limited". Does it mean limited in the number of occasions that the person is to exercise these judicial functions, or does it mean limited in the account or the value of the thing involved? Obviously this inquiry will last a long time and witnesses will be brought from all over the world. I could see the cost in respect of one set of people running into hundreds of thousands of pounds. Can it reasonably be said that that is a limited exercise or a limited administration of justice? I do not think it can. I think a valid and learned argument could be put forward by saying that "limited" means only limited in value and trivial or minor. I admit that the word "minor" is not used there whereas it is used in regard to offences on the criminal side but I think there is a real danger that section 6 would not stand up to the constitutional test that justice must be administered by judges appointed under the Constitution.
I am conscious of the fact that that would not be the end of the tribunal. It would only be hard luck on the poor man who was awarded costs. If the Minister for Justice was ordered to pay, then I suppose he would be the only person who would question them. However, it does not end there because the section states:
may by order direct that the whole or part of the costs of any person appearing before the tribunal by counsel or solicitor, as taxed by a Taxing Master of the High Court, shall be paid to the person by any other person. ...
That is where we get into trouble. I could see that some person could get a substantial award for costs against a big corporation or some wealthy person before this tribunal and that that other person or party would come into court and say he was not liable to pay the costs because they were ordered to be paid by a person purporting to exercise judicial functions and who was not a judge. The person who was awarded the costs might never be able to collect them.
Section 6 contains a new provision, as the House is aware. Under the Principal Act the tribunal did not have power to award costs and this was seen as being a very serious defect. The new section gives a tribunal or the chairman of a tribunal, if the tribunal has more than one member, full power to order that the whole or part of the costs of any person appearing before the tribunal by counsel or solicitor as taxed by a Taxing Master of the High Court shall be paid to the person by any other person named in the order including the Minister for Finance if the tribunal is of opinion, having regard to its findings and all other relevant matters, that there are sufficient reasons rendering it equitable to do so. An order in relation to costs does not involve the determination of a dispute between parties and is therefore not an administration of justice. The Chairman of a tribunal in making such an order is bound to act judicially and constitutionally but this does not make the function an administration of justice. Even if it were considered to be an administration of justice it would be saved by Article 37 of the Constitution which provides for the exercise of limited functions and powers of a judicial nature in matters other than criminal matters by persons or bodies other than courts and judges.
(Cavan-Monaghan): I do not accept the Minister's contention that the Chairman of the tribunal in deciding whether one of several parties before it should pay the cost of another party, would not be administering justice. The tribunal is not administering justice when inquiring into how something happened but when it comes to the question of awarding costs the tribunal is really deciding who is at fault, who behaved well before the tribunal, who prolonged the inquiries and so on, it is deciding who is entitled to be indemnified in respect of his costs by another person. If that is not the administration of justice, I do not know what it is. It is the virtual determination of who has made the inquiry necessary and who has behaved reasonably before the inquiry.
I am concerned that because the word "limited" is there Article 37 would not invalidate the determination under Section 6 which would otherwise be unconstitutional. Is there any way in which it can be written into the Bill that the judge for the purposes of this tribunal would be acting as a judge of the High Court and not as a chairman of a tribunal. Something like that might save the matter. It should be given some thought because the thing is not watertight as it is. In most cases the State would pay costs but here there is a real possibility, because a number of wealthy people are involved, that a person or corporation could be ordered to pay the costs of another, and he might escape under this.
The Minister stated earlier that the function of the tribunal is to ascertain the facts and report them to the Government and that it has no other functions. If that is so how could section 6 give the right to the chairman or to the tribunal to ask one party to pay the costs of another? By saying that A must pay B's costs the tribunal is finding A wrong and B correct and that is making a decision. One does not need a legal qualification to see that. Section 6, whether we like it or not, is giving the tribunal power to make a decision and is extending the tribunal's fact-finding role into making decisions. The tribunal can make an assessment as to who is right or wrong. Having analysed the facts and made the necessary assessments the tribunal can ask one party to pay the costs of another. The tribunal will have a dual role, to report the facts to the Government, and to make a decision in this case. It is reasonable to assume that whichever party is asked to pay the costs of another is, in the opinion of the tribunal, the guilty party. By finding a party guilty one is making a decision.
I will comment briefly on three points on this section and on the point raised by Deputy Fitzpatrick. The first subsection of section 6 is not drafted as well as it might be. The usual formula in such matters where power to award costs is conferred expresses that power as being to award costs to some person appearing or represented against another person appearing or being represented. This subsection as drawn does not contain that qualification in the case of the victim of the order for costs. As the section stands it might be some person to whom it comes as a complete surprise that his behaviour is before the tribunal at all. I know that is not the intention and I have no reason to suppose that anyone would interpret the section like that, but that is how the section looks as it stands. There is a rule of construction now which the courts apply whereby when a power is conferred on somebody by a statute, they read the power as tacitly containing the condition that it must be exercised in a constitutional manner so that the High Court or the Supreme Court would interpret this power as requiring that tribunal not to make an order for costs against a person who has not been present, who has not had an opportunity of explaining his conduct or making representations about his part in the affair, so as to render it therefore possibly an arbitrary act on the part of the tribunal if they were to make an order for costs against him. If I am right about this, this is only a drafting point and it can be improved by amending line 30 to read "any other such person", in other words a person appearing before the tribunal by counsel or solicitor or by any other person appearing or represented.
The second and third points both arise on the point raised by Deputy Fitzpatrick. One is that this very point illustrates as indeed the next Bill to come before the House will illustrate the extremely unsatisfactory nature of Article 37. It was an innovation in the 1937 Constitution. I expect to give a history of it when the next Bill comes up for discussion. Nobody knows what a limited power or function is. It is true that the boundaries of the functions we are talking about were equally hard to define under the old Constitution but this Article has only made the confusion worse because it has created what appears to be a third category, for which there is no need, where formerly there were only two. I believe there is precedent in other statutes, although that in itself would not cure the matter, for Ministers having power to award costs. One instance is the Ministerial function in deciding disputes on insurance policies. There is precedent there for that power being conferred, rightly or wrongly, but I believe Deputy Fitzpatrick has a powerful point.
It is quite arguable that if a hefty order for costs is made for several thousand pounds that could plausibly be represented as the exercise of a function which, if it is a judicial function—I could not be certain about that; that is another of the uncertainties which Article 37 has made worse—it could be argued, as Deputy Fitzpatrick did, that it is not limited and that, therefore, it should not be made by somebody who is not a judge or by an authority which is not a court.
My final point arises also from the unsatisfactory nature of Article 37 which I believe should be scrapped instead of being tinkered with in the way the next Bill before the House proposes. The unreality of it can be seen in this matter. Deputy Fitzpatrick made the point— and he is absolutely correct—that this Tribunal of Inquiry is not a court: although it is presided over by a judge, it is still not a court in the sense of Article 34. This difficulty could arise on it. Of course, the same tribunal could sit with Mr. Justice Costello wearing the same clothes in the same hall in Bantry, or the centre chosen, and do exactly the same job; but if we had legislation which conferred upon the High Court a special inquisitorial or inquisitional function in matters like that as an aspect of the High Court's own jurisdiction—it could be the Circuit Court; I do not mind which—this difficulty would disappear.
The Constitution permits, under Article 36, the Legislature freely to create, change and chop jurisdictions in the various courts, with some exceptions. For example, the Legislature cannot interfere, obviously, with jurisdictions which the Constitution confers, particularly the constitutional jurisdiction to adjudicate on the validity of Acts but, short of that—may be in one or two other exceptions also—the Legislature can confer whatever jurisdiction it wishes on the courts. There is nothing to stop this House and the Seanad from conferring on the High Court a special inquisitorial jurisdiction which would absorb or subsume or replace the function of the Tribunal of Inquiry we are dealing with here. In that event Mr. Justice Costello could sit on the same bench, have the same assessors and do exactly the same job, and this difficulty would not arise. In doing that job he would be acting as a judge of High Court in the High Court, even if he was sitting in Bantry. The latter two points illustrate the unsatisfactory and troublesome nature of Article 37 and provide a fitting preview for what I will have to say on the next Bill.
I should like to thank Deputy Kelly for his contribution, which is probably the best way of replying to what he said.
I should like to deal with the question raised by Deputy Murphy in relation to costs. The position is that the 1921 Act, the principal Act, did not have power to award costs and that was seen as a serious defect. We could have a situation whereby a wealthy party could spin out the proceedings for weeks, months or years and the ordinary person would not be able to afford to pay counsel or a solicitor. That is why I am trying to help the ordinary person. The tribunal can say, if the wealthy party is spinning things out unnecessarily, that he must pay the costs and the Taxing Master will determine the amount. That is the purpose of the section. With regard to the scope of the possible order for the costs, the Supreme Court has held that there is a presumption that discretion or power conferred by post-1937 Acts, such as this Bill, will be exercised by those upon whom power is conferred within the scope of the Constitution. If there is, as Deputy Kelly said, scope for improvement on the drafting of the Bill, I am prepared to have a look at it and, if it can be improved, we will do so in the Seanad.
I accept, as the Minister stated, that he will look at the section again in the light of the excellent points made by my colleagues in Fine Gael and by Deputy Murphy, but he may be on a wrong tangent in regard to the question of a possible spinning out of the tribunal. The section clearly states that the tribunal can make this order having regard to the findings of the tribunal. That was the point excellently put by Deputy Murphy. I agree that the words "of all other relevant matters" are included, but it clearly states "having regard to the findings of the tribunal". We all agree that the tribunal should have this power. We are concerned as to the constitutionality of the power and to ensure as far as possible that it will stand up. If this power is exercised the figures involved could be very big and it might be worthwhile for lawyers representing individuals or a corporation to make a constitutional issue of it. I hope the Minister will look into those points carefully to see if the difficulties mentioned can be overcome.
Question put and agreed to.
Section 7 agreed to.
Title agreed to.
Bill reported with amendment.
Agreed to take Fifth Stage today.
Question proposed: "That the Bill do now pass."
We have agreed to allow the Bill go through all Stages this morning and we are conscious that the safeguard exists of having a further examination of the Bill to make it entirely watertight in the Seanad. I trust the Minister will look into the two major points we have mentioned: the question of penalties, which I am concerned about because I consider them to be inadequate, and the Constitutional point.
Question put and agreed to.