However, Deputy Howlin declined this opportunity.
As I have already said, I will furnish to the Opposition parties the Government's proposed terms of reference for the Donegal inquiry and I look forward with interest to their views. It will be clear from what I have said, however, that the schedule for dealing with the Bill in both Houses is the only one compatible with the passage of the necessary Dáil resolution on the Flood tribunal before the Easter recess.
I now turn to the contents of the Bill which has two main purposes. First, it will facilitate the work of the tribunal of inquiry into the Donegal allegations by ensuring that a risk of prejudice to any pending criminal trial will not arise from the tribunal's proceedings. Second, it will provide a clear legal basis for the appointment of additional and reserve members of tribunals as requested by Mr. Justice Flood. The Bill also provides that a tribunal may appoint investigators to assist it in carrying out its functions.
Section 1 is a standard interpretation provision. Section 2(a) of the Tribunals of Inquiry (Evidence) Act 1921 provides that a tribunal can exclude the public from its proceedings where in its opinion it is, in the public interest, expedient to do so for reasons connected with the subject matter of the inquiry or the nature of the evidence to be given. Section 2 of the Bill before us amends this by adding a provision that a tribunal can, in particular, avail of its power to exclude the public if there is a risk of prejudice to criminal proceedings. Thus, it elaborates on the existing power to exclude the public by making clear that one of the circumstances in which this can be done is when there is a risk of prejudice to criminal proceedings. It should be noted that this provision applies to proceedings which are in existence at the time the tribunal is hearing the relevant evidence, not possible future proceedings.
Section 3 deals with the situation which would arise if a tribunal reports at a time when criminal proceedings are pending in respect of a matter connected with the tribunal's inquiries. This is a situation which is not adverted to at all in the tribunals of inquiry legislation as it stands. Subsection (1) provides that the person to whom the tribunal reports, for example a Minister or the Clerk of the Dáil, may apply to the High Court for directions regarding the publication of the report if he or she considers that publication might prejudice the criminal proceedings. Subsection (2) provides that, before determining the application, the court may hear the Attorney General – whose duties include representing the public interest before courts and tribunals – the Director of Public Prosecutions and the defendants in the criminal proceedings. Subsection (3) provides that the court may direct that the report or any part of it be not published for a specified period of time or until the court so directs. Subsection (4) provides that the court may, if it considers it appropriate, hear an application under this section otherwise than in public. There would be little point in having a provision to facilitate non-publication of a report because of the risk of prejudice to a criminal trial if the contents of the report were disclosed during the very proceedings the purpose of which is to determine whether publication should take place.
Section 4 deals with membership of tribunals and inserts six new subsections in section 2 of the Act of 1979. The new subsection (3) provides for the appointment of additional members to tribunals at any time after the tribunal is appointed. The existing section 2(1) of the 1979 Act already provides for the appointment of more than one member when the tribunal is initially established in that it states that a tribunal may consist of one or more than one person. The new subsection (4) provides that, subject to section 6 of the 1979 Act, a decision or determination of a tribunal may be that of a majority of its members and, in the case of an equal division, the chairperson shall decide. The phrase "may be that of a majority of its members", rather than "shall be . . ." is to take account of the possibility that decisions and determinations may be unanimous. The phrase "Subject to section 6 . . ." means that decisions on the award of costs are to continue to be made by the chairperson if the tribunal consists of more than one member, as provided for by that section.
Subsection (5) provides for the appointment of a member to replace the chairperson if he or she is unable to continue to act. It also envisages the situation in which the chairperson may step down from the chair but continue as an ordinary member. Subsection (6) provides that the appointment of additional members under subsection (3) and the designation of a new chairperson under subsection (5) shall be done by way of an amendment of the instrument by which the tribunal was appointed in accordance with section 1A of the 1921 Act, which was inserted by the Tribunals of Inquiry (Evidence) (Amendment) (No. 2) Act 1998, except that consent of the tribunal to the identity of appointees will not be required.
I will explain this in a little more detail. The 1998 (No. 2) Act provides for the amendment of the instrument establishing a tribunal in two situations, first where the tribunal has consented to the proposed amendment following consultation between it and the Attorney General on behalf of the Minister in question and second where the tribunal has itself requested the amendment. This provision was, essentially, intended to deal with changes in terms of reference, that is the matters which the tribunal is to investigate. The two circumstances mentioned in the Act arose in relation to the Flood Tribunal and gave rise to this provision, as Deputies will recall. However, while it is appropriate to require the consent of the tribunal to the appointment of additional members and to a change in the list of matters it is to investigate, it would be wrong to require its consent to the identity of the new members or new chairperson.
Accordingly, subsection (6) provides a procedure for the appointment of new members or a new chairperson by way of a modification of what is provided for in the 1998 (No. 2) Act for the amendment of instruments generally. Most important from the point of view of this House is that the amendment of any instrument shall be made pursuant to a resolution of both Houses, so the Dáil and Seanad will have the opportunity to debate the changes proposed for the tribunal. Subsection (7) provides that a member of a tribunal who is unable to act shall be deemed not to be a member for the period of that inability. With reference to subsection (8), one of the points made by Mr. Justice Flood was that it should be provided that, where any of the full members of the tribunal is unable to act for any reason, the tribunal should be able to proceed to hear evidence on the basis of the remaining members and reserve member. Subsection (8) is relevant to this proposal in that it provides that a tribunal may continue to act, notwithstanding one or more vacancies, if it is satisfied that the legal rights of any person affected would not be unduly prejudiced. An example of where a tribunal might consider that it should not continue to act because the legal rights of a person would be unduly prejudiced would arise if the original tribunal member has left the tribunal and that person was the sole member when particular evidence was heard, while the additional member(s) were not members or reserve members at that time. The tribunal might, in those circumstances, conclude that it would unduly prejudice a per son's legal rights were it to make findings on evidence it did not hear and to which it has access, perhaps, only in the form of transcripts. On the other hand, the tribunal might consider that it would not unduly prejudice a person's rights if it made findings in a situation in which a member was not acting as such for a brief period. It will be a matter for the tribunal to decide.
Section 5 deals with reserve members. Subsection (1) provides for the appointment of reserve members by the instrument establishing the tribunal or an instrument amending that instrument. So, the Minister for the Environment and Local Government will, assuming the appropriate resolutions are passed by both Houses, make an instrument appointing a reserve member to the Flood Tribunal and, similarly, one or more reserve members can be appointed by the instrument setting up any future tribunal on any subject. Subsection (2) sets out the role of a reserve member. He or she may sit with the tribunal during its proceedings, consider oral evidence, examine documents that are produced or sent in evidence and be present at deliberations of the tribunal. However, he or she may not otherwise participate in the proceedings or deliberations and may not seek to influence the tribunal in its decisions or deliberations. The principle on which this provision is based is that the reserve member, though not a member of the tribunal, will be fullyau fait with its work and will be in a position to replace a full member if that becomes necessary. This model for the role of the reserve member is taken exactly – except for drafting changes – from that set out in resolutions of the Dáil and Seanad, passed on 5 July last, in relation to the appointment of a reserve member to the Flood Tribunal at a stage when it was proposed to proceed with the appointment of such a member on the basis of the legislation as it stands. Subsection (3) provides for the appointment of a reserve member to be a full member, if a full member is for any reason unable to continue to act as such.
Subsection (4) – again in line with the Dáil and Seanad resolutions of last July – provides that the appointment of a reserve member as a full member may be deemed to be operative from a prior date. This shall not be earlier than the date on which he or she became a reserve member. This provision can be best understood in the context of a tribunal whose work can be divided into two or more modules. The reserve member might be appointed as such during the hearing of evidence part way through the first module and, in the course of the second module, it might be necessary to appoint him or her to be a full member. In that case, it would be appropriate to backdate the appointment as a full member to the beginning of the second module. The appointee would be regarded as a full member for the whole of the second module but it would not be necessary or appropriate to deem him or her to have been a full member during the whole or part of the first module since that might already have been the subject of findings and a report by the tribunal as it was then constituted.
Where the appointment as a full member is backdated, subsection (5) provides that this shall not affect decisions or determinations made before the actual appointment. Were it otherwise, a situation could arise in which a decision of the tribunal, validly taken by a majority at the time, might be later regarded as invalid because it would not be the decision of the majority when the new member's appointment is backdated. As I have already outlined, section 4 provides that a decision of a tribunal consisting of more than one member is to be that of a majority. The final paragraph of section 5, subsection (6), provides that the appointment of a reserve member to an existing tribunal, or of a reserve member to be a full member of a tribunal, shall be by the same procedure as I outlined earlier in relation to the appointment of additional members and of a new chairperson. That is, the instrument appointing the tribunal will be appropriately amended pursuant to resolutions of both Houses of the Oireachtas.
Section 6, on investigators, is designed to remedy a defect in the existing legislation in relation to the power to compel a person to co-operate in a tribunal's preliminary investigation. It is well recognised in the case law that has built up over the past decade or so in relation to tribunals of inquiry that the work of such tribunals involves a number of stages, namely, a preliminary investigation of the evidence available; the determination of what is considered to be relevant; the service of such evidence on the persons likely to be affected by it; the public hearing of witnesses in regard to such evidence and the cross-examination of witnesses by or on behalf of the persons affected by their evidence; and, the preparation of a report and the making of recommendations based on the facts established at the public hearings. In 1999, the Supreme Court held in the case of Lawlorv. Flood, 1999 3 IR, that the principal powers of a tribunal under the legislation were to enforce the attendance of witnesses, to provide for their examination before the tribunal and to compel the production of documents and that the examination of witnesses, particularly those who were not willing to co-operate during the initial stages, was not a matter which, in the absence of express statutory authority, could be delegated by a tribunal to any other person or body. In other words, while a person can be compelled to attend before a tribunal itself to answer questions, she or he cannot be compelled to answer questions of the tribunal's legal team in the course of the preliminary investigation. Section 6 deals with this by providing for the appointment of investigators and for their duties and powers.
Under subsection (1), a tribunal may appoint investigators with the approval of the Minister who appointed the tribunal and the consent of the Minister for Finance or the approval of the Government if the Government appointed the tribunal. Subsection (2) provides that the appointment of investigators shall be for such term and subject to such terms and conditions as the tribunal may determine with the approval of the relevant Minister or the Government, as the case may be. Subsection (3) specifies what the role of investigators is to be. This is to assist the tribunal in the performance of its functions by carrying out preliminary investigations into matters relevant to the inquiry. In doing this, they are subject to the direction and control of the tribunal.
Subsection (4) provides that investigators will have power to require persons to give information, produce documents and answer questions and it imposes a duty on persons to comply with such requirements. Furthermore, under subsection (5), a person's answers may be reduced to writing and the investigator may require the person to sign the document. There are a number of precedents of this type of provision, one example being section 10 of the Companies Act, 1990 in relation to company inspectors.
The most notable characteristic of the powers being given to investigators is that they parallel the powers of the tribunal itself, except that they will be used at the preliminary investigation stage. Accordingly, I do not propose that the investigators should examine persons on oath – that is for the tribunal itself if it decides that the answers given by a person to the investigator merit the calling of that person to give evidence at a public hearing of the tribunal.
Subsection (6) provides that if a person refuses to comply with the requirement of an investigator, the latter may, with the consent of the tribunal, apply to the High Court which may order the person to comply with the requirement, thus making further non-compliance a contempt of court. This method of enforcement of the investigator's requirements is essentially the same as that provided for in relation to tribunals in section 4 of the Tribunals of Inquiry (Evidence) (Amendment) Act, 1997.
Under subsection (7), a person who is required by an investigator to give information, produce documents or answer questions shall be entitled to the same privileges and immunities as a witness before the High Court. For example, such a person, if sued for defamation as a result of what he or she says to an investigator or what is in a document produced to an investigator, would have the same privilege as if they had given this evidence or produced the document as part of High Court proceedings.
Subsection (8) protects the confidentiality of information obtained by investigators subject to the overall control of the tribunal. It will frequently be the case that the preliminary investigation discloses material that is of no further interest to the tribunal, perhaps because it falls outside its terms of reference. The confidentiality of this material must be respected and subsection (8) so provides. Subsection (9) provides that an investigator shall be furnished with a warrant as evidence of his of her authority to exercise the very significant powers of the office.
Section 7 makes it a summary offence for a person not to comply with the requirement of an investigator or to obstruct or hinder him or her. The penalty for such an offence will be a fine not exceeding €3,000 and-or imprisonment for a maximum of 12 months. The point to note in relation to this section is that we are not providing for trial on indictment which is provided for in the 1979 Act for broadly similar offences in respect of a tribunal. I believe that section 7 and the power to seek a High Court order under section 6(6) represent adequate and proportionate enforcement mechanisms to ensure that investigators will be fully effective in carrying out their functions on behalf of tribunals.
Section 8 provides that a statement or admission made to an investigator cannot be used as evidence against the person making it in any criminal proceedings. This again parallels section 5 of the 1979 Act which deals with tribunals themselves and, as such, it is also necessary in respect of investigators.
Section 9 increases the maximum fines for offences relating to non-co-operation with or obstruction of a tribunal from £500 to €3,000 on summary conviction and from £10,000 to €300,000 in the case of conviction on indictment. I note that Deputy Shatter has a Bill on the Order Paper which contains provisions which are not dissimilar to these. The fine of €3,000 on summary conviction is the maximum appropriate amount according to the advice of the Office of the Attorney General. The increase in the maximum fine on conviction on indictment is over 20-fold and, even allowing for the length of time since the maximum was set in 1979, is by any standards a very significant increase which will show how seriously this House regards the offences to which the penalty applies. This section applies in respect of offences committed after the passing of the Act, irrespective of whether the tribunal concerned was appointed before or after such passing.
Section 10 deals with the application of the Act which, with the exception of sections 4, 5 and 9, shall apply to tribunals established after its passing. That is to say that the provisions on membership of tribunals, reserve members and increased fines will apply to existing tribunals while the sections on the exclusion of the public and publication of reports where this might prejudice criminal proceedings shall apply to future tribunals. It is not considered necessary to apply these provisions to the existing tribunals which have been functioning satisfactorily under the present law on these aspects. The provisions on investigators are expressed by section 10(3) not to apply to existing tribunals unless such application is provided for by an amendment to the instrument appointing the tribunal. In other words, existing tribunals could use investigators provided their instrument of appointment is amended appropriately under the procedure in the 1998 (No. 2) Act which, of course, involves prior resolutions of both Houses.
Section 11 is a standard provision stating that any expenses incurred by Ministers in the administration of the Act shall be paid out of moneys provided by the Oireachtas. Section 12 is a standard provision dealing with the short title and collective citation.
This measure achieves a number of important objectives in that; it will ensure that the tribunal of inquiry in relation to the Donegal allegations can function properly having regard to the existence of criminal proceedings; it provides the legal base for the planned enlargement of the Flood tribunal; and the benefits of the provisions in respect of both these objectives and of the provisions on investigators will be available generally to tribunals in the future. Accordingly, I commend the Bill to the House.