Senators will be aware of the background to the Bill. The Government approved in principle the setting up of a tribunal of inquiry into allegations of misconduct on the part of certain members of the Garda Síochána in Donegal. The Government also decided to have amending legislation drafted to enable the tribunal to conduct its inquiry without prejudicing various court proceedings which have been instituted relating to the alleged misconduct.
When dealing with parliamentary questions or motions relating to alleged misconduct by gardaí in Donegal, the Minister, Deputy O'Donoghue, consistently made it clear that he was not opposed to the holding of a public inquiry on the issue but that there was a real concern about the danger of prejudice to criminal and civil proceedings. He mentioned this problem specifically to the Dáil on 23 May 2001 and advised Deputies that he was seeking the advice of the Attorney General. His advice confirmed that the holding of such an inquiry at that time could have prejudiced the civil and criminal proceedings which had been instituted as a result of the alleged misconduct and that, on the basis of the information then to hand, the best course was to let the criminal and civil proceedings run their course. If matters were not fully ventilated during those proceedings, then a tribunal of inquiry could be established.
Neither the criminal nor civil proceedings advanced quickly and there was real concern, which the Minister shared, about the length of time it was taking to bring the various inquiries and proceedings to finality. On 13 November 2001, the Minister announced that he was appointing an eminent legal person to examine the matter. Mr. Shane Murphy, senior counsel, was appointed shortly after by the Minister with the following terms of reference:
To conduct an independent review and undertake a thorough examination of the action taken and of relevant papers held by An Garda Síochána and the Department of Justice, Equality and Law Reform relevant to allegations that members of An Garda Síochána in the Donegal Division engaged in criminal, unethical or unprofessional behaviour, particularly in the context of the investigation into the death of Mr. Richard Barron and with regard to the finds of bomb-making equipment;
To advise, taking into account relevant criminal, civil and disciplinary aspects and mindful of the public interest, whether all appropriate steps had been taken with due diligence and expedition;
To advise what further measures, if any, may now be taken to bring those who have engaged in criminal, unethical or unprofessional behaviour to account at the earliest opportunity to address public concerns;
In this regard, to submit a Report to the Minister for Justice, Equality and Law Reform as a matter of urgency.
The Minister received Mr. Murphy's report on 30 January 2002. While recognising the need to ensure that civil and criminal proceedings were not compromised, Mr. Murphy endorsed the view that, "A Tribunal of Inquiry represents the only comprehensive method of inquiry to resolve outstanding issues of fundamental public importance."
The enactment of the Bill will allow a tribunal of inquiry to be established to investigate matters in Donegal without prejudice to criminal proceedings. I am pleased that Mr. Frederick Morris, former President of the High Court, has agreed to be the sole member of the tribunal. The Minister is in the process of consulting the Opposition parties on the Government's proposed terms of reference. He will try to facilitate them by taking on board any suggestions of theirs which could help us reach as broad a consensus as possible as well as a satisfactory conclusion to this matter.
A further consideration underlying the legislation is that the sole member of the Tribunal of Inquiry into Certain Planning Matters and Payments asked that the Tribunals of Inquiry (Evidence) Acts be amended to state clearly that a tribunal may comprise more than one member and to provide expressly for a reserve member. Mr. Justice Flood suggested that this was necessary to avoid any possible challenge to the process of the tribunal. He also suggested 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 two members and the reserve member. The Bill responds to Mr Justice Flood's requests.
The timescale for consideration of the Bill in both Houses is regrettably but inevitably short. It passed all Stages in the Dáil on Friday and needs to be passed by the Seanad today. The Bill must be enacted before the Easter recess so that the Dáil can pass the necessary resolution pursuant to it, which will be tabled by my colleague, the Minister for the Environment and Local Government, to provide for the appointment of additional members and a reserve member to the Flood tribunal. For this reason, the House will be asked to pass an earlier signature motion later this afternoon.
The Bill has, as I have indicated, 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 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. The Attorney General's office advises that it would be inappropriate to use the word ‘existing' as this is already implicit in the word ‘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 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.
I emphasise that it is only the person to whom the tribunal is to report, as specified in the instrument establishing it, who can apply to the court under this section for a direction. A person who may be criticised in the report and who, therefore, would like to prevent publication has no standing to bring an application to the court under the section. Clearly, this provision is necessary because there is little point in having the provision for hearing evidence in private under section 2 if the tribunal's report has to be published on completion though criminal proceedings are still in existence. Indeed, I consider that publication of a tribunal's report could have greater potential to prejudice criminal proceedings than evidence heard by a tribunal in public in that the report will include the evidence, or a summary of it, together with the possibly negative findings made by the tribunal, on the basis of the evidence, about the conduct of the person who is the subject of 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 seven 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 think I should 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, in fact, gave rise to this provision, as Senators 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, in my view, 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 the fact that the amendment of any instrument shall be made pursuant to a resolution of both Houses, and so the Dáil and Seanad will have the opportunity to debate the changes proposed for the tribunal.
Subsection (7) was inserted by a Committee Stage amendment moved by the Minister in the Dáil and provides that an appointment of additional members or a designation of a new chairperson shall not affect decisions, determinations or inquiries made or other actions taken by the tribunal before the appointment or designation. This amendment was suggested by Mr. Justice Flood in a letter to the Attorney General last Thursday and the Attorney General advised the Minister to move it in the Dáil. Mr. Justice Flood fears that, if there is not a saving provision of this kind, decisions which he has taken and orders which he has made may be subject to legal challenge because the tribunal will then consist of three persons rather than a sole member.
Subsection (8) 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 (9), as I said earlier, 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 (9) 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 or members were not members or reserve members at that time. The tribunal might, in those circumstances, conclude that it would unduly prejudice a person'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. 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 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 fully au 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. A Committee Stage amendment, made by the Dáil on the Minister's proposal, in line with the terminology used in section 4(7), inserts the reference to "inquiries made or other actions taken" in section 5(5). This was at the suggestion of Mr. Justice Flood, who considers that this language strengthens the provision.
The final subsection 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 Lawlor v. 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.
Some have suggested that the requirements for ministerial approval and the consent of the Minister for Finance open the way for the Government to frustrate the work of tribunals by not permitting them to appoint investigators. This is clearly an absurd view as I cannot imagine a Government, accountable as it is to these Houses and to public opinion and subject as it to rigorous scrutiny in the media, attempting to hinder a tribunal by unreasonably and for improper motives withholding approval of the appointment of investigators by a tribunal. This provision is nothing more than one for essential ministerial oversight of the expenditure of voted funds and it is a provision of a type which appears regularly in the Statute Book. For example, the employment equality legislation provides that the members of the Equality Authority hold office and receive remuneration on such terms as the Minister with the consent of the Minister for Finance may determine. It also provides that the Minister may appoint such number of persons to be staff of the authority as may be approved by the Minister, with the consent of the Minister for Finance. Similarly, the legislation provides that staff may be appointed by the Minister, with the consent of the Minister for Finance, to assist the Director of Equality Investigations. I have not heard it argued that the independence of statutory bodies, to which provisions of this kind apply, has been compromised by such provisions which, as I have said, are commonplace in the Acts of the Oireachtas dealing with staff and resources.
Subsection (3) of section 6 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) of section 6 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 for 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 offences will be a fine not exceeding €3,000 and-or imprisonment for a maximum of 12 months. It should be noted 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. 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 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 failure to co-operate with, or to the 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. 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 more than twentyfold and, even allowing for the length of time since the maximum was set in 1979, it is by any standard a very significant increase. It will show how seriously the Houses of the Oireachtas regard the offences to which the penalty applies. This section applies to 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, except for sections 4, 5 and 9, shall apply to tribunals established after it is passed. The provisions with regard to 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 existing tribunals, which have been functioning satisfactorily under the current law on these matters.
The provisions applying to investigators, which are expressed in section 10(3), will 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 involves prior resolutions of both Houses.
Section 11 is a standard provision which states that any expenses incurred by Ministers of the Government in the administration of the Act shall be paid out of moneys provided by the Oireachtas.
Section 12 is also a standard provision dealing with the Short Title and collective citation. This measure achieves a number of important objectives in that it ensures the tribunal of inquiry into the Donegal allegations can function properly, having regard to the existence of criminal proceedings. It also provides the legal basis for the planned enlargement of the Flood tribunal. 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 recommend the Bill to the House.