Thursday, 1 July 2004
Seanad Eireann Debate
Minister of State at the Department of Justice, Equality and Law Reform (Mr. B. Lenihan): I am pleased to present to the House the Commissions of Investigation Bill 2003. The Bill provides for the establishment of commissions of investigation. The function of a commission of investigation will be to investigate into and establish the facts about matters of significant public concern referred to it for investigation and to make a report on its investigation.
The House will be aware that the Bill has its origins in the need to provide a means for investigation into the child sex abuse scandals in the Catholic Church. It is generally accepted that the public and sometimes adversarial nature of tribunals of inquiry does not lend itself to investigation of matters of such a sensitive and intensely personal nature. Nonetheless, such inquiries need to have at their disposal powers which are no less vigorous and effective in the pursuit of answers to difficult questions. Separate to this, the Government recognised the need to devise a new form and method of investigation.
The Bill adds in a significant way to the range of mechanisms available for investigations. As Members will note, the Bill contains several new features that will ensure more timely and cost effective investigations without in any way compromising or encroaching on the proper conduct of an investigation. These features will instead enhance the ability of a commission of investigation to meet its objective of establishing the facts about any matter referred to a commission. The interests of justice and accountability will be advanced by a speedy conclusion to an investigation.
Before dealing with the detail of the Bill’s provisions, it is important to have a clear picture of what the Bill does not do. This legislation does not replace or amend in any way the legislation under which tribunals of inquiry are established and operated. Commissions may be regarded as precursors to, or alternatives to, tribunals but the Bill makes no change to legislation relating to tribunals. It is also important to note that the Bill does not establish a single or permanent investigations body. It enables the establishment of commissions as and when required. Several commissions may sit at any one time investigating into several and varied situations. In other words, this Bill gives the State a very flexible investigative mechanism.
Several of the new departures and innovative approaches to be found in the Bill are particularly important and worthy of emphasis. I draw the attention of the House to aspects of the Bill which relate to the terms of reference of a commission and to the guiding principles that aim to encourage co-operation. I will explain the way a commission will conduct its investigations and the strong powers available to it and will outline the provisions designed to ensure time limits are respected and costs are kept under control. Finally, I will underline the importance of the reports of commissions. Given these features, I hope Senators will agree that the Bill introduces a timely and effective additional mechanism to ensure accountability and transparency in our public affairs.
The first and most basic question is when and in what circumstances we envisage commissions being established. The Bill provides that a commission will be established on foot of a Government order approved by the Oireachtas. The subject matter must be, in the words of the Bill, an issue giving rise to significant public concern. An issue giving rise to significant public concern is one of more than mere passing interest to the public. It must instead be an issue that has serious, including long-term, implications for public life. Those implications could include the welfare and safety of a sector in society or the effective and safe operation of a significant public service.
While the Bill provides the mechanism and structure for the operation of investigations, it will remain the function of the Government of the day and the Oireachtas, as the representatives of society at large and as guardians of the public interest, to make the judgment in any particular case as to whether an issue is of such significant public concern that it requires investigation by a commission.
I will now deal with the terms of reference of a commission. It is recognised that clear and well defined terms of reference, which are tightly drawn, are often the key to a successful investigation. The Bill addresses this issue directly in sections 4 and 5. The process leading to the establishment of a commission starts with the presentation to the Oireachtas of a reasoned statement of the need to establish a commission, along with the draft establishment order. Following the approval of the order by the Oireachtas, the terms of reference are to be set by the Government or the Minister having overall responsibility for the commission in question. There may be consultations with interested parties about the terms of reference but the terms must, in the final analysis, comply with the detailed parameters in section 5.
Section 5 sets out very specific matters to be considered in setting the terms of reference. Observance of these criteria will result in tight and well defined terms of reference. Section 5 also requires that the terms of reference must be accompanied by statements setting out the likely duration and cost of an investigation. The terms of reference and the accompanying statements on costs and duration will be published.
Section 6 recognises that the terms of reference may need to be altered on occasions. It states that any amendment must be for clear purposes, namely to clarify, extend or limit the scope of an investigation. The statements of costs and timeframes must be amended when the terms are altered. This will ensure that the full implications of any alteration are clear to everyone. It is worth noting that amendments may be made only if the commission consents to them. It may withhold consent if it is satisfied that the amendment would prejudice the legal rights of any person who has co-operated with or provided information to the commission.
The Minister is satisfied that the overall effect of these important sections is that this legislation is ensuring that the difficulties that have come to beset other investigations and inquiries are met and addressed at the outset. Therefore, the scope for surprises at a later stage should be considerably reduced.
In keeping with the general aim of the Bill, section 7 adopts a flexible approach to determining the membership of commissions. Under the terms of the section, we will be able to draw on a wide range of skills and expertise. We will be able to achieve the right mix of such skills and expertise. The experience and qualifications of the members can be supplemented by experts who can be recruited under section 8 to assist and advise the commission. The Minister hopes to ensure that all investigations, regardless of their subject matter, will be carried out by, those most qualified to do so. He considers that sections 7 and 8 will ensure that is the case. Section 9 requires that a commission must be independent in the discharge of its functions.
Section 10 sets out the guiding principles by, which commissions must operate. Commissions will be required to seek the voluntary co-operation of witnesses. The Bill places a responsibility on commissions to facilitate witnesses in that respect. Given the multitude of circumstances in which commissions may operate, it is not possible to say how and in what manner commissions will meet that responsibility. One can envisage that, for example, they will be prepared to hear evidence in locations and at times that are more convenient for witnesses. Subject to certain safeguards, they may accept evidence in forms other than in person. For example, evidence may be accepted by live or pre-recorded video links or by affidavit.
Section 11, which provides that, in general, evidence will be given to commissions in private, complements section 10. It will support commissions in adhering to the guiding principles I have mentioned. The arrangements set out in section 11 will result in a less adversarial atmosphere. It is hoped that such an atmosphere will encourage witnesses who might be intimidated by the prospect of lengthy and detailed cross examination, for example, to come forward to assist the commission. Section 11 provides that legal representatives of other parties will be present only if the commission is satisfied that their presence is necessary in the interests of the investigation and fair procedures. Similarly, cross-examination by or on behalf of other parties will take place only if the commission agrees. The commission may, however, question a witness on the evidence he or she has given.
I recognise that the procedures in section 11 represent a departure from current practice in certain respects. The Minister argues that the new approach is designed to assist commissions in their primary task of establishing facts, while ensuring that procedures are fair. As hearings will be in private, generally speaking, the risk of damage to the good name or reputation of another is greatly reduced, as is the need for legal representation. Private hearings have the advantage of avoiding the difficulties, which arise when claims are publicly made, by one party but remain unanswered for a considerable time until the affected person comes to give evidence. In such circumstances, there is a risk that unfounded or inaccurate claims can appear to go unchallenged and the good name and reputation of certain persons can be gravely and unjustly damaged. The new approach should reduce that risk.
It is important to ensure that private hearings are not abused in a way that would allow unfounded allegations and claims to be made or to go unchallenged. Section 12 addresses this concern by providing that a commission should inform any person who may be the subject of such claims or allegations of those claims or allegations. It provides that such persons should be given an opportunity to deal with them. While no obligation is being placed on a commission to reveal the source of any evidence given to it, such details should be disclosed on certain occasions.
Section 15 requires a commission to establish or adopt rules and procedures pertaining to its operation. If a commission has several members, such rules may authorise the taking of evidence by one or more of them. The section provides that evidence given in such circumstances will be regarded as having been given to the commission. This is an important measure that could help to speed up investigations and to save time and cost.
I would like to discuss the powers the Bill gives to commissions of investigation. While voluntary co-operation is the legislation’s central plank, commissions will be in a position to pursue investigations with vigour if co-operation is not forthcoming. Sections 16 and 28 of the Bill, in particular, provide effective powers to deal with a failure to co-operate. Section 16 specifies the powers that will be available to commissions in respect of witnesses. They will have the power to direct witnesses to attend, to answer questions and to produce and disclose documents. Section 28 provides for powers relating to entry into premises, inspecting and securing documents, taking copies of documents and requiring persons in charge of documents or related equipment to co-operate with the commission. All witnesses appearing before a commission will be made aware that in the absence of co-operation, the commission may have recourse to the powers available to it under these sections.
I draw attention to section 2(2), which provides useful clarification of who has control over documents, especially in large organisations. It states that in the final analysis, the person who can reasonably be considered to have control is deemed to have control, unless there is evidence to the contrary. This closes a potential loophole that could be open to abuse.
The Bill creates several offences — failure to comply with directions, giving false statements and obstruction. The offences carry fines on summary conviction of up to €3,000, or a term of imprisonment of up to 12 months. On indictment, the offences will be punished by fines of up to €300,000 or imprisonment of five years. Corporate bodies may be prosecuted for offences under the Bill in the normal way. If a person does not comply with a direction to attend or produce documentation, a commission may apply to the High Court for an order seeking compliance. The failure to comply with such an order raises the issue of contempt of court.
The powers I have mentioned are necessary for the effective functioning of commissions. The Minister recognises that the powers are significant. For that reason, section 27 sets out the principles governing the use of the powers of entry and search under section 28, for example. The powers may be used if it is felt that it is reasonable and necessary to do so in the interests of the investigation. Nothing in the Bill prevents anyone who is the subject of a direction from a commission under sections 16 or 28 from seeking a review of the direction in the High Court.
I draw attention to section 21 in the context of a commission’s powers and operating procedures. The section sets out how a commission may deal with circumstances in which privilege is claimed in respect of information sought by it. The purpose of this measure is to find an effective but proportionate way of overcoming difficulties presented by claims of privilege. Such claims can seriously frustrate and delay the work of an investigation, especially if there is no justification for them. The mechanism proposed in section 21 ensures that genuine claims will be respected, while ensuring that the necessary information will be made available to a commission.
I wish to discuss the control and management of costs, issues which arise under three headings. At the beginning of any investigation, costs will be incurred by the commission. As I noted earlier, the terms of reference must be accompanied by, a statement of the costs that are likely to be incurred by a commission. The statement is to be revised if the terms are altered. The costs covered by the statement will include the costs of staff appointed to advise and assist the commission, in accordance with section 8. Such staff may include barristers and solicitors. Section 8 provides that a competitive tendering process may be used for the recruitment of staff under the section, where it is appropriate to do so.
Costs can also arise when witnesses seek to have their costs recouped from the Minister. Although the legislation deals mainly with the repayment of legal costs, it makes some provision for non-legal costs. Travel costs and other expenses may be reimbursed under section 16(3), for example.
Section 23 provides for guidelines to be prepared by the relevant Minister in respect of witnesses’ legal costs. The guidelines will be drawn up in consultation with the Minister for Finance, in advance of the commission’s hearings. They will set out the legal costs, which will be regarded as being “necessarily incurred” by witnesses in connection with the investigation. Such expenses are the only legal expenses a witness can expect to have recouped. Legal costs will be necessarily incurred when the good name of a witness is called into question, or when other personal or property rights are at risk of being jeopardised as a result of evidence received by the commission. The guidelines prepared under section 23 may restrict the types of legal services or fees to be recouped and may set limits on the level of legal costs to be paid. Witnesses will be given a copy of the guidelines before they give evidence. This ensures that witnesses who wish to do so can arrange legal representation with full knowledge of the regime under which they may seek to have the costs recouped.
A commission is obliged, in accordance with section 13(2), to advise witnesses of their legal rights and obligations when they are not legally represented for whatever reason. Even if a commission considers that legal representation is not necessary to the extent that it will approve the recoupment of costs and the witness does not therefore acquire legal representation, it will seek to ensure that the witness is fully aware of his or her legal rights and duties.
The section 23 guidelines do not automatically guarantee that all or any of a witnesse’s legal costs will be met. Each situation will be considered on its merits, having regard to the criteria set out in section 24. In particular, all applications will be subject to the criteria in section 24(3), which sets out a non-exhaustive list of issues to be considered by the commission. The section enables a commission to take account of the level of co-operation provided by the witness, among other things. Having considered an application, a commission may give a direction to the relevant Minister to pay costs at a level that does not exceed the maximum level set in the guidelines. The recommended level may be lower than in the guidelines. The Minister may pay the costs as directed by the commission, or refer the matter back to the commission for reconsideration, after which the commission may reduce the proposed level of payment or confirm its original determination. The Minister shall then pay the witness the costs recommended by the commission.
A person may be held liable, due to obstruction or a lack of co-operation, for additional costs incurred by other parties, such as the commission or other witnesses. Section 17 provides that if a witness is held to have failed to co-operate or obstructed a commission, and the commission or other witnesses have incurred additional costs as a result, the party who causes the delay or obstruction may be held liable for the additional costs. Liability for the costs of a commission or other witnesses may be imposed on persons in addition to that person being proceeded against for the offence of obstruction. In other words, it should be understood that obstruction is likely to have serious consequences.
Section 24(5) makes a limited exception to the general regime on costs. This will occur where a witness incurs exceptional costs other than legal costs because of the volume or location of documents, for example, documents held outside the State. In those circumstances, the commission may direct that such exceptional costs may be repaid to the witness and, as in the case of legal costs, the relevant Minister may request the commission to reconsider any direction about the repayment of such costs.
I have been anxious to spell out to Senators in some detail the provisions relating to costs, in particular legal costs. To summarise, in addressing the question of legal costs, the Bill takes account of the overall structure being put in place, including the level of risk to the good name and reputation of any witness because, as I expect, private hearings will be the norm. It is reasonable to say that the lower level of risk to the good name and reputation of any witness should be reflected in a reduced need for legal representation. On the other hand, the Bill ensures costs that are necessarily incurred — that is the critical phrase — in the protection of a person’s good name and reputation will be recouped. The Bill sets out to achieve a balance between the wider public interest to control costs and the protection of the rights of individuals to their good name, and these proposals achieve that balance.
Part 5 of the Bill deals with reports and interim reports of a commission. Section 32 provides not only that a commission must prepare for the relevant Minister a written report based on the evidence received by it but also identify the precise purpose of the report. It must set out the facts it has established in regard to the matter referred to it. It is not the function of a commission to speculate, make findings or come to judgements based on, for example, the balance of the evidence. However, by virtue of having become a matter requiring the establishment of a commission of investigation, there is likely to be dispute about some or all aspects of the evidence.
Again, there is a balance to be achieved here. It would be unreasonable to expect a commission to merely set out the conflicting evidence and offer no comment even where a certain comment would be justified by the clear weight and quality of some or all of that evidence. Such an approach would undermine the credibility of a commission as it alone would be unable to draw conclusions that would seem obvious to all other observers. Section 32(2) therefore enables a commission to indicate its opinion as to the quality or weight of evidence relating to any area where the evidence is incomplete, insufficient, inconsistent or disputed. This does not go so far as to say that a commission may favour or find that one version of the evidence is more credible than another. It does permit a commission to point out that, for example, certain disputed facts are supported by corroboration from other sources or that a clear majority of witnesses affected by a particular event support one version as opposed to another. Statements of this kind merely summarise where the weight of the evidence lies and they are, to that extent, merely stating what is obvious to all.
I want to draw attention to some aspects of the Bill as they relate to the possible identification of persons in reports compiled by a commission. There is no general restriction in the Bill on the identification of persons in reports of a commission. However, section 32(3) sets out considerations that may lead to the omission of certain details from a report identifying persons who gave evidence or any other person.
Sections 34, 35 and 36 contain provisions providing an opportunity to persons identified in or identifiable from a draft report to submit comments thereon to the commission on the grounds that there has been a failure to observe fair procedures or in order to protect commercially sensitive information. A commission is required to give due consideration to requests for alterations. It may either amend the report, apply to the High Court for directions or submit the report to the relevant Minister without alteration. In the alternative, a person identified in or identifiable from a draft report may bring the matter before the High Court seeking an order from the court directing that the draft be amended before submission to the relevant Minister. The court may either order the commission to submit the report without alteration, or with such alterations as it may direct, or give a direction to the commission to provide an opportunity to the person to give evidence or make submissions to the commission before the report is finalised. Either way, no one will be allowed to delay publication indefinitely. There will be time limits for making submissions to the commission or applications to the court. Giving affected persons an opportunity to comment and have their views considered will meet the requirements of natural justice. The commitment to fair procedures will reduce the likelihood of court challenges to a commission’s work and supports the objective of efficient and effective investigations.
The final decision on the publication of a report or interim report rests with the relevant Minister. He or she may seek directions from the High Court where there is a risk that anything in the report or interim report could prejudice any pending or ongoing criminal proceedings. This is a useful final check. The Bill does not contemplate any other reason for delaying or withholding publication.
It is likely that in many cases commissions will find themselves grappling with the difficulties of disputed evidence. As a result, it may transpire that in some instances a commission may be unable to establish or present the full facts in respect of some or all of the matters about which it has carried out an investigation. The Bill, therefore, leaves open the possibility of a tribunal of inquiry being established under the Tribunals of Inquiry (Evidence) Acts 1921 to 2004 for the purposes of inquiring further into the matter. It is my view that it will be the exception to have to establish a tribunal as a follow-up to a commission. Neither will the establishment of a tribunal in such circumstances represent a failure on the part of the commission. On the contrary, it will have carried out invaluable preparatory work on behalf of any subsequent tribunal, thus saving time and cost, apart from the quality and volume of the evidence it will have amassed.
Section 45 provides that in the event of a tribunal being established, all of that evidence becomes evidence of the tribunal. Care must be taken, however, to ensure that information excluded from a commission’s report under section 32(3) is not made public as a result of the transfer of the evidence received by the commission to the subsequent tribunal. Section 46 provides a mechanism for dealing with such information. It provides that the affected person is to be informed of any intention to disclose details that were previously excluded and that they have a right to make observations. Ultimately, the High Court may have to consider all such matters.
I turn now to the question of what a tribunal can be expected to achieve that the commission has been unable to do. A commission is required to establish facts and may comment beyond that only to the limited extent that I have referred to. This limited brief is required if we are to have a mechanism that reduces the adversarial content of existing fora and places less reliance on cross-examinations and other features that add to cost and delay. A tribunal hears arguments in public and, unlike what we generally expect to be the case with commissions, permits cross-examinations. It can then come to conclusions based on the balance of the evidence available to it. In other words, it is able to make judgments about the balance of evidence in a way that we do not foresee for commissions of investigation.
As I have already stated, I would expect that only in the rarest of cases will there be a need to establish a tribunal following the conclusion by a commission of its work. A decision on whether to propose the establishment of a tribunal will, in the first instance, be a decision by the Government of the day and the proposal must then be submitted to the Oireachtas for its approval. It may be that the Government would decide that even where the commission’s investigation is not as complete as would have been hoped, enough evidence will have been collected by it. The Government would then be in the position to proceed with the matter another way, for example, by legislative or administrative action.
The Minister believes this reforming legislation provides an efficient and effective alternative to the State for the purposes of investigating matters of significant public concern. It draws on our experiences to date with other methods of investigation. It is a Bill that arises from recognition of the complexities of modern government and public administration. The opportunities for systemsto fail are ever greater and the consequences of such failures have far-reaching effects, both for the individuals, their reputations and the country at large. It is important that we provide ourselves with a mechanism for responding to such failures that is responsive, sensitive and fair while at the same time effective and efficient. To meet these standards it must be speedy and cost effective. In that way it can command public respect and confidence. It will be seen as the ideal way of dealing with complex circumstances while fully respecting fair procedures and natural justice. This Bill meets those criteria and I am happy to commend it to Seanad Éireann.
Ms Terry: I welcome the Minister. The tribunal and public inquiry system is critical to the functioning of a democratic State. The core principles of any investigation must be that it is effective, efficient and has the full confidence of the public. Despite much excellent work from the current tribunals, there is clear evidence that public confidence in the tribunal model as a means of excavating and delivering the truth has waned. The recently published fourth report of the Mahon tribunal does little to allay these concerns.
Any new proposals concerning tribunals will be judged by the members of the public from three distinct perspectives, namely speed, cost and results. Any proposed model that does not make significant improvements on all of those fronts will not amount to sufficient change. A new approach, therefore, which may bring speedy results at a reasonable cost is in principle worthy of support. However, one of the dramatic differences between this Bill and any other comparable legislation is that the model proposed by it politicises commissions of investigation to an unhealthy degree. It does so by ruling out any participation of the Oireachtas in the whole process, which is totally unacceptable.
I am glad that in the other House the Minister accepted Fine Gael’s proposal that all lawyers must go through a tendering process before being engaged by a commission. This is something that should be made a requirement for tribunals also because it would go some distance towards reducing the cost of tribunals.
The rationale behind facilitating the establishment of commissions of investigation appears to be that they will be the first stage of an investigative process and if after investigation a matter is deemed more serious or more complex it will then be examined more fully by a tribunal. Will this legislation not just add a further layer to the existing tribunal process? Will the Minister of State tell the House how many of our existing tribunals would have been able to conclude at a commission of investigation stage? Many Members will agree the answer is zero.
Aside from questioning the basis of the Bill, my real problem is that it seeks to extinguish the role of the Oireachtas, which seems to have no role other than making a positive resolution to establish a commission. In every other respect, the Minister has total control and his powers are exercised without reference to the Oireachtas. It is the Minister who will establish a commission by making an order, set the terms of reference, appoint the members and receive and publish the reports. The Minister can effectively be the political master of a commission of inquiry. Has the Minister considered the effect this will have on public confidence in the process?
Under section 4, the order establishing the commission may authorise the Minister to set the terms of reference without any reference to the Oireachtas. This is in stark contrast to the way in which the terms of reference of a tribunal are set. These form part of the resolution, which establishes it and which is debated by the Oireachtas. Under section 32(4), it is the Minister who will receive the report of the commissions of investigation. Under sections 33 and 34, interim reports and draft reports must also be submitted to the Minister. The independence of any body, such as a commission of investigation, is paramount. In order to enjoy public confidence, the commissions must be at arms length from the Government. It is conceivable that much commission time will be spent investigating the activities of those not too far removed from the political sphere. Not alone must the commission be independent, but it must be seen to be so.
The Fine Gael Party believes the role of the Houses of the Oireachtas in bodies of this type needs to be reinstated. The commissions of investigation and their terms of reference should be established by the Houses of the Oireachtas. In addition, the chairman of each commission must be required to be answerable to the Houses, or an Oireachtas committee. The chairman of a commission should meet with and report to an Oireachtas Committee to answer questions on the investigative process but not on the content or detail of its investigations.
The public nature and consequent volume of lawyers are the two ingredients, which have made tribunals lengthy and costly. I am not convinced this legislation prevents these two factors becoming an issue in the context of commissions. Section 11 indicates that the bulk of a commission’s work is to be undertaken in private. However, under section 11(1)(a) and (b), the commission must sit in public when a witness requests such or where fair procedures would require it. These circumstances are potentially broad and would seem to reintroduce the public element to commissions. Section 11(2) reintroduces the potential for the attendance of large and costly legal teams, as it allows legal representatives of persons other than witnesses to attend. Section 11(2)(c) and (d) introduces the right to cross-examine into the workings of a commission.
Section 6(2) is most unusual and gives rise to some concerns as it effectively states the terms of reference cannot be amended where to do so would prejudice the rights of a person who has co-operated or provided information to it. This effectively grants immunity from further and deeper investigation to those who assist the tribunal, irrespective of what negative detail of their role later becomes available. Is it wise to tie the hands of the commission in this unusual way? Section 10(2)(a) and (b) are unusual provisions that impose a mandatory obligation on a commission of investigation to “seek the voluntary co-operation of persons whose evidence is desired” and that it must “facilitate such co-operation”. In practice, this could prove unduly onerous for a commission. For example, it could require overseas travel to facilitate witnesses in circumstances where it is not justified.
I give qualified support to the general principle of the establishment of commissions of investigation, but I would like the Minister of State to address the matters which I have raised. When can we expect a reforming Bill on the raft of tribunals of inquiry legislation, which dates back to 1921? In March 2003, the Law Reform Commission published a comprehensive consultation paper on this issue. Despite this, the Government has given no indication of interest in implementing that consultation paper. The legislation is long overdue for review. The Mahon and Moriarty tribunals and Dunne inquiry are going from pillar to post without any end in sight. In the Law Reform Commission’s consultation paper, only five pages deal with alternatives to tribunals. This Bill only gives effect to those five pages. When will see the other 340 pages implemented?
The Law Reform Commission seems to favour the establishment of commissions of investigation. However, its consultation paper stated “the commission would expect that such an inquiry will not attract the rules of constitutional justice”. In drafting this Bill, the Minister was faced with a quandary. On the one hand, he aimed to establish private inquiries, without the lawyers and publicity. On the other, he saw the constitutional constraints. The real question is whether the Minister has struck the right balance. Article 40.3.2 of the Constitution gives each person the right to a good name. The protection of this right before the courts necessitates the right of representation particularly where one’s good name might be brought into question. Due to these considerations, and also out of caution, the Minister has conceded rights of attendance, representation and cross-examination. It is questionable whether in doing so, the Minister has avoided the potential infringement of a constitutional right. The workings of a commission seem to take on the trappings and procedures, which would be expected of a tribunal or a court.
The further one reads the Bill, the more the distinctions between a commission and a tribunal begin to fade. The requirements of natural justice have defeated the intention to have low key, private hearings. Has the Minister achieved his aim of private, speedy, inquiries without lawyers and without bowing to the rules of constitutional justice, as suggested by the Law Reform Commission? Or has he just added another layer to the tribunal process, which will be as lengthy, costly and as public?
Mr. J. Walsh: Cuirim fáilte roimh an Aire Stáit agus an Bille tábhachtach seo. Unlike Senator Terry, I welcome this much needed Bill. Those of us who sat on the sub-committee on the Barron report into the Dublin-Monaghan bombings were conscious of the inhibitions the current failed mechanisms of tribunals imposed. There is overwhelming public support for changes to be made which will lead to more cost-effective, efficient and relevant ways at getting at the truth. Ultimately, that is what all of these are about. Where issues of public concern arise, it has to be open to the Oireachtas, the Government and Ministers to establish mechanisms, which can inquire into these issues and arrive at conclusions on issues of importance.
We have had a proliferation of tribunals. While I empathise to some extent with Senator Terry regarding an Oireachtas input, that will happen in any event because of the accountability Ministers and the Government have to both Houses. The Houses are however in no position to make any argument for having a defining role in establishing tribunals, given what has happened. As a Member I would personally feel culpable, and collectively we should feel culpable, for setting up vehicles which are costing a fortune. Some good work has certainly been done. The issues were important and needed to be inquired into, but not for the length of time and at the costs currently involved. Despite pressure from the media or elsewhere we must be sensible in the arrangement we put in place. Any evening I am travelling late, I enjoy the “Tonight with Vincent Browne” radio show. The re-enactment of tribunal proceedings is very interesting and entertaining but at what cost? We could have entertaining programmes on radio between 10 p.m. and 11 p.m. for a small fraction of the cost incurred by the tribunals. That is not to diminish their role in any way but they have got totally out of hand. In fairness, many people in the legal profession also say that the tribunals are bringing their profession into disrepute. There is a need for more streamlined alternatives. What is before us is a well constructed, good alternative for the investigation of many of the issues. I did not quite understand the point made by Senator Terry regarding existing tribunals but most of them could have been covered by the mechanism we now have in the Commissions of Investigation Bill.
When I alluded to the Dublin-Monaghan bombings, the biggest atrocity in the history of the Troubles on this island over the past 30 years, the only commensurate matter which arose that would have equalled those atrocities and equalled the necessity to have a public inquiry is probably the scandal of the blood transfusions, dealt with by the Lindsay tribunal. The fact of those tribunals taking such an inordinate length of time means that the purpose for which they were established is lost with the time span incurred. We heard recently that the Mahon tribunal will probably continue until 2014. Anything, which comes out of it in that year, or indeed in 2010, will probably have been overtaken by various changes in legislation during the interim period. The value of the investment in the tribunal will therefore have been lost. If issues are of public concern, there is surely a necessity that they be dealt with expeditiously. With the length of time being incurred by some tribunals, that is not happening. That is why I welcome the provision in this Bill that at the very outset the terms of reference, including a timeframe for the operation of the commission of investigation and a fully costed appraisal of what it will take to complete, are essential.
I mentioned earlier the manner in which previous terms of reference were drawn up. Much of the difficulty now being encountered regarding the timeframe and costs of existing tribunals relates to the broad terms of reference allowed. In that regard I would like to see on an all-party basis a sensible appraisal made of where each tribunal now stands, the outstanding issues and the timescales of which the tribunals themselves are talking. Each tribunal should then be re-defined in a sensible way. I have no doubt that much of the information gathered in some of the tribunals could now be referred to the Director of Public Prosecutions. There is no reason the legal process should not be able to deal with a number of the issues that have now arisen. That is the correct forum for dealing with serious wrongdoing.
I would like to think that once this legislation is enacted we would consider what issues currently before the different tribunals might well be referred to a commission of investigation to be expedited and processed. The residue of important matters which it is felt can be dealt with only by tribunals would then be re-defined in much more specific ways with the existing tribunals so that they could conclude their work in a fashion which would have been the initial intention of the Houses of the Oireachtas when some of the tribunals were established as far back as 1998. When some of those tribunals were established in that year, I doubt any Member envisaged that in 2004 they would still be continuing and only at the early stages of their activities. This Bill is a reasonable vehicle to ensure that in the future these matters will be dealt with in a manner of which we would all approve.
I note that in the Bill there is emphasis on voluntary co-operation, to which Senator Terry referred. The Bill is clearly premised on getting co-operation but it also has extensive coercive powers which are outlined. They include directions to attend, to answer questions, to disclose and produce documents, powers of entry on foot of a warrant in the case of a private dwelling and the power to seize documents and equipment, as well as to make determinations and give directions where privilege is claimed over documents. That is as it should be. Once a commission of investigation or tribunal is established it must be able to operate with the full resources of whatever legal powers are required in order to conduct its business well and arrive at its conclusions.
The Minister of State might clarify a matter which possibly involves constitutional issues. The commission of investigation will report and outline the facts in a situation. Where there is a conflict in the evidence, it is debarred from adjudicating. I suppose that is because much of the commission’s work will be conducted in private so that people may not have the possibility of cross-examination in certain areas. That whole area might need to be looked at. I know that we value the idea of the public trial, the cross-examination and everyone having his or her say. That system does not operate in all countries. It has its shortcomings and we should recognise that. Where certain situations arise and where the facts can be garnered from private interviews, corroborated, established and perhaps even admitted, there is no reason why conclusions cannot be reached. However, in order to reach conclusions, it may be necessary to have a full public inquiry, with all the attendant costs, delays and so on.
Senator Terry alluded to the fact that holding many of the sessions in private would give an element of confidentiality at the early stages of investigations so that people’s good names are not tarnished. The corollary to this is the public tribunals system. The initial operation, in which lawyers for the tribunal outline the information they have garnered and what they will deal with during the course of a specific module, all goes into the public domain unchallenged and uncontested. In many instances, where it reflects badly on people’s characters, it gives rise to injustice. When one hears many months later the defence making its case, carrying out the cross-examination and giving the other side of the coin, a different perception emerges. It is unfair that in the interim people who may have done no wrong can be ridiculed and held up to opprobrium by the media and the public at large. It is not right.
One cannot deal with this topic without addressing the issue of costs. The Minister of State may be able to confirm what the tribunals have cost to date. I have heard figures in the region of €120 million. There is speculation that by the time all the tribunals are completed we could be talking about €1 billion, which is alarming. It is a scandal. I do not necessarily concur with Senator Terry’s welcome for the tendering process. There is not a competitive arrangement within a number of professions, particularly the legal profession. I do not think a tendering process would achieve very much under the current closed system, which operates within the legal profession. There is an onus on the Government to tackle privilege where it is operating on behalf of vested interests and against the public good. This is an area that needs to be opened up to competition. However, until some system is put in place to achieve competition, I doubt if the tendering process will achieve what is desired.
It is not good enough for people who do not co-operate and who are saddled with the cost of part of the tribunal or part of the commission of investigation to be hit with excessive costs if the State has agreed €2,500 a day when the maximum for any individual should not exceed €1,000. If the State has done a bad deal with its lawyers in these instances, people should not have to fund the inefficiency of the State in their negotiations with legal people or anyone else who might be involved. The way the legislation is structured means that other legal people will be involved, which will help to streamline costs. I am pleased to welcome the Bill, which will in time be seen to be a progressive measure.
Mr. Quinn: I welcome the Minister of State, Deputy Parlon. I welcome the Bill more in hope than in expectation but I am very impressed with the Minister of State, Deputy Lenihan’s, explanation that it does not replace or amend existing legislation in regard to tribunals, but introduces a more flexible approach, which is necessary.
I am not certain that the new model will be a successful way of carrying out investigations. What I am certain about is that the existing tribunal model has failed and we need to look for an alternative approach in the future. There is an old saying that “justice delayed is justice denied”, which goes to the heart of the problem we have had with tribunals. Senator Walsh and Senator Terry already touched on this aspect. The root problem with that approach is that they take too long to complete. As of today, the Moriarty tribunal has been running for 2,470 days, the Mahon tribunal, formerly the Flood tribunal, for 2,431 days, the Morris tribunal for just 799 days and the Barr tribunal for 730 days. None of the tribunals is anywhere close to completing its work.
For example, the Mahon tribunal recently estimated that it has 11 years of work to do. On past performance, we can have no confidence whatever that this will not prove to be an underestimate. This timescale is unacceptable, which is why I am sure the Minister has faced up to this challenge. It is totally out of line with what we were led to expect when each of the tribunals was set up. It is fair to say that if Members of the Oireachtas had any idea the tribunals would go on for so long, we would have thought long and hard before agreeing to their establishment in the first place. We probably did not have any other choice at that stage without introducing new legislation.
The long timescale of the existing tribunals makes worse another inherent fault in the existing model, namely, the expense. The public standing of the tribunals has been greatly undermined by the sheer cost of the operation. It involves sums of money that are outside the experience of most ordinary people. Most people are not happy at the sight of teams of lawyers being provided with years of work that guarantee a total return roughly equivalent to winning the national lottery in a good week. There are two things wrong with the costs as they currently stand. The first is the rate that is paid to counsel representing the very many interests involved in the tribunals. Their daily rate parallels the usual costs that apply in the normal courts, but for totally different work. Most court cases last just a day or two and even the longest cases stretch for only a few weeks. The daily rates paid to counsel working in the courts reflect that fact. They are not designed for situations where the work goes on for many years, at a very low level of intensity. The other cost problem arises from the use of expensive lawyers to do work that is, to put it mildly, way below their pay grade.
Each of the tribunals employs a team of lawyers who do the basic research work necessary to prepare the tribunal’s case at public sessions. It is not necessary to employ top lawyers to do this type of work. Equally good results, or perhaps better results, could be got from using researchers who would cost a great deal less. Either lawyers should not be used for this work but, if they are, they should be paid on a contract basis at a rate that reflects the level of the work carried out.
There is a third aspect to the cost issue which I am reluctant to touch on because it may be taken as criticism of the people involved in the existing tribunals, which I am anxious to avoid. My main issue is with the system, not with the people who are caught up in it, but honesty compels me to say that I am disappointed at the complete lack of urgency that seems to pervade each of these tribunals, from top to bottom. They are very good at carrying out their terms of reference, which we in the Oireachtas have provided, but no one in any of the tribunals appears to have considered the common sense questions of how long it will take to get results and if that timescale is acceptable to the public. Is the timescale just, equitable and appropriate? Far from asking these questions, it appears to some observers looking at the tribunals from the outside that in some cases the tribunals have deliberately gone about their work in the slowest possible way. I am not making that accusation. I am merely recording the fact that some people have voiced that opinion and believe it to be true. The fact that many people feel that way is a contributing factor to the low regard in which the tribunals are currently held by the public.
The legislation concerning tribunals dates, as Senator Terry said, to 1921. However, until the beef tribunal at the beginning of the 1990s, it was very rarely used. The beef tribunal took too long, cost too much and produced unsatisfactory results. With hindsight, maybe it should have been a warning to us that there was something inherently flawed with the model we were using. More than a decade later, with all the experience we now have under our belts, there can hardly be any doubt about the unsuitability of the tribunal model as a way of investigating serious problems.
I therefore give a cautious welcome to the Bill, which at the least is an acknowledgement that the problem exists. Whether it is a workable or complete solution, only time will tell, but I am willing to give it a chance. We must observe it carefully in operation and be ready to change it if circumstances suggest the need. We will always need some mechanism like this, other than the tribunal system, and it is vital the mechanism is effective. However, in putting forward legislation, let us be ready to examine it again to find whether we can improve it. If it is not effective, it will succeed only in adding to the problems and perpetuating them rather than solving them.
The Minister of State at the Department of Justice, Equality and Law Reform, Deputy Brian Lenihan, referred to two aspects of the Bill. I look forward to hearing him answer Senator Terry’s concern that the commission reports to the Minister and not to the Oireachtas. I do not understand this and would like the Minister to put my mind at rest. I approve of another point made by the Minister. He explained that the Bill has in its origins the need to provide a means for investigation into the child sex abuse scandals and to make arrangements for a less adversarial atmosphere to encourage witnesses who might otherwise have been reluctant to attend. This is worthy of praise, consideration and support.
The Bill has been thought out correctly and goes in the right direction. I question whether we should have the flexibility to adjust it in some form in the future rather than setting it in stone. Nonetheless, I congratulate the Minister.
Mr. Kett: I welcome the Minister of State, Deputy Parlon. I thank the Department of Justice, Equality and Law Reform for bringing forward this legislation, which, unfortunately, is appropriate because of the times in which we live. The Bill provides for the establishment of commissions of investigation, which will investigate and report on matters referred to it which, in the words of the Minister of State, Deputy Brian Lenihan, are “of significant public concern”. Their job thereafter will be to establish the factual detail.
A question arises as to when and in what circumstances such a commission would be established. The Bill provides that a commission will be established on foot of a Government order approved by the Oireachtas. The subject matter must, in the words of the Bill, be of significant public concern and not simply of public interest. In the past, situations have perhaps arisen whereby an issue driven by the media in the first instance gathered legs and ended up in a tribunal when it may have been no more than a storm in a teacup. Relevant issues of significant public concern could include the safety of society or the safe operation of a significant public service.
We live in an era in which tribunals are an everyday occurrence. This has brought shame on the body politic and exasperated and disgusted the general public in a manner that could and should have been avoided. Moreover, some of the cheap political point-scoring in recent years has focused attention on politicians when we would perhaps have been better served by avoiding this. Anyone scoring a political point on this issue focuses on him or herself as well as on the person targeted, which serves no-one in public life.
The tribunals were set up to examine unsavoury elements of Irish life and issues of concern to the public, as is right and proper. We have been shocked and ashamed by some of the outcomes and revelations from the tribunals. In that regard, I welcome public inquiries and hope they eliminate all that was bad in public life and life in general, whether in regard to the nod and wink merchants, the greedy or those who would seek to abuse the young and vulnerable.
However, it is unfortunate, as we all agree, that the tribunals have become ponderous and lean heavily on the public purse. Recent statements that the tribunals may continue for years are at the least alarming. Have the terms of reference of the tribunals been examined? A lay person considering them would think they had moved away from their initial terms of reference. It would appear that any given evidence can send the tribunals off in many directions. The recent tribunal appearance by the Taoiseach is a good example. Two objective friends told me that, on that occasion, the tribunal was basically a sub-committee and that what took a full day could have been dealt with in half an hour. I am sure there are many other examples of this.
Given this slow progress coupled with rising costs, it is not surprising there is an increasing level of frustration and anger among the public, who pay the costs at the end of the day. For that reason alone, I welcome the Bill. It contains several new features which will ensure more timely, cost effective investigations without compromising the outcome of those investigations. It enhances the ability of a commission of investigation to meet its objectives by establishing the facts about matters referred to it. Justice will be better served, leading to a speedy conclusion and cost savings, all of which will assist in allaying public anger concerning the small number of lawyers receiving a disproportionate amount of the funds associated with the workings of tribunals. A newspaper report today suggested lawyers are receiving in excess of €2,000 per day. When one hears of such costs, it is unsurprising the tribunals have cost approximately €120 million to date and could cost as much as €1 billion. This is outrageous when one considers what could be done with that money in times of need, and it must be stopped.
When the tribunals were initially set up, we all thought they would last one or two years at worst and that verdicts would result. While I accepted the original need for tribunals, they have lost their focus in many respects and, in many instances, have become bogged down in legal argument. This Bill introduces many positive features to eliminate much of that. For instance, under the establishment order there must be statements referring to timescales and costs before the commission is set up. That is a commendable way forward. If these provisions had applied five or six years ago, as Senator Terry said, we would not be in the quagmire we are in currently in terms of costs and so on. Now details will be provided prior to any deliberations and the public will clearly see where their money is going, how long the process will take and what the final outcome will be in terms of cost. That will serve to create confidence in the process where it is required. Obviously, if it were not required at all we would all be much better off.
It must also be recognised that this in no way interferes with the workings of tribunals now or in the future. Neither does it establish a single or permanent investigations body. We are told many investigations can take place at different times. That is to be welcomed. I also welcome the fact that the commission will focus in the first instance on seeking its information on a voluntary basis. To this end, the evidence will be received mostly in private, which is also a good thing. However, it has the teeth, if necessary, to force a witness to attend if he or she is not prepared to do so in a voluntary capacity. It is easy to envisage circumstances in which witnesses might not want to come forward. They may not be willing to co-operate or may try to hinder the effectiveness of the process. I am glad to see there is provision for penalties because this will focus the mind of a person who may want to hinder the process.
The protection of the good name of persons who are maliciously maligned is also included in the Bill. People will have the option of telling their side of the story if they so wish. The Bill will be of major benefit in investigating serious matters of public concern. I wish it well. Like all legislation that has come out of the Department of Justice, Equality and Law Reform, it is well thought out and will be of major benefit.
Ms Tuffy: I welcome the legislation in principle. There is no doubt that we need alternative forms of inquiries into matters of public interest. This type of commission of investigation was recommended by the Law Reform Commission and, it is to be hoped, will be useful in terms of inquiries.
The Labour Party has raised issues of concern about the legislation in the Dáil and we will do so again in this House. Some of our concerns have been raised by Senator Terry, for example, the setting of the terms of reference by the Government. The Labour Party has suggested that the legislation be amended so that the Dáil and the Seanad are given this role in setting up commissions. We are in favour of tools such as this that are cheaper than the tribunal system and, it is to be hoped, speedier, but we also want to ensure the legislation is constitutional.
We identified flaws in the Bill and proposed amendments to try to address the problem. We would like the Minister to consider these amendments once again. For example, our amendments dealt with the issue of fairness. One amendment also dealt with the issue of privileged documents. My understanding is that under the legislation, the commission must examine privileged documents. We are concerned that it could contaminate the whole inquiry if the commission becomes aware of something from a privileged document. We suggested amendments in the Dáil to try to address these problems but they were not accepted. We hope to put down similar amendments in this House.
This is just one step. It is mentioned by the Law Reform Commission, but there are many other recommendations by the Law Reform Commission that have yet to be carried out. These deal with the general issue of the need for inquiries into issues of public concern. The problem with tribunals, as was pointed out by other Senators, is the matter of cost and time. There is no doubt that the tribunals are doing worthwhile work, but the remit of tribunals is to deal with issues of public concern, and cost and timescale are also issues of public concern. When I think of the tribunals I am reminded of Bleak House, which I studied in college. I am not casting aspersions on the tribunals themselves but if a matter of public interest takes so long to be investigated, the public interest aspect is lost. There is something wrong with the procedure. If an issue of public concern is investigated for so long that it is no longer of public concern, what is the point?
The Flood tribunal is investigating matters which are of concern to people who live in my local area, in the constituency of Dublin West. However, time is moving on and people wonder whether anything will come of the tribunal. If the investigation lasts for 11 or 12 years, will it still matter? Will we have moved so far ahead that it will be just a footnote in history? I hope not, but we must consider ways of addressing this problem. We need to make sure the tribunal can complete its work as quickly and efficiently as possible.
While the tribunal carries out its work it should be able to complete a study of its particular area so that in a few years laws could be introduced to address some of the problems identified. There should be moments of completion along the way and, overall, the tribunal should be able to make its determinations much more quickly. Whatever is required to do that should be done. If we provide resources for the tribunal to carry out its work more quickly and efficiently it will be a cost that we face now, but in the long term it will save money and the tribunal will gain more respect and mean more to people.
It is important that the tribunals have some effect in terms of reforms, many of which have taken place without reference to any tribunal findings. We must ensure our reforms take into account the issues being investigated and adjudicated upon by the tribunals. We also need to make sure that in the next few years we introduce reforms in legislation and public policy on the basis of information gained from the tribunals.
However, there are many other measures which the Government promised at various times in respect of which no legislation is forthcoming. What is being done about this at Government level? The Government proposed the appointment of a parliamentary inspector. This is also mentioned briefly in the Law Reform Commission’s report. In that regard, the Labour Party has proposed the setting up of a parliamentary inspectorate to work in tandem with an investigation oversight and petitions committee. Its function would be similar to that carried out by the Comptroller and Auditor General on behalf of the DIRT inquiry. It would complement the commissions of investigation because the commissions are very much Government initiated whereas a parliamentary inspectorate would be accountable to both Houses of the Oireachtas. What is happening on that? It is my understanding that the Government has shelved it.
There is also the issue of addressing the need for criminal investigation into wrongdoing. Most people would like to see justice done regarding wrongdoing in matters of public interest. It is very much the public perception that there is not enough of that. What does the Government intend to do to ensure more is done in this area? People who are guilty of wrongdoing in the public arena should be prosecuted where appropriate. Very little is being done in this regard.
The Labour Party has proposed a constitutional amendment to ensure that a parliamentary inquiry is as effective a tool as it can be. What is the Government doing in this area? The Law Reform Commission report indicates that a constitutional amendment is probably necessary to correct the legislation as it stands. Does the Government intend to examine that aspect as well?
Mr. Scanlon: The Commissions of Investigation Bill provides an essential and valuable alternative method of investigating matters of public concern. It establishes a body whose brief is to find the truth and deliver justice.
The issues of public concern the commissions will investigate will not be trivial matters, but serious issues that could have long-term effects on Irish society. The Bill originates in the need to provide a means for investigation into child sex abuse scandals and other issues of national concern. It is essential to have a general framework for the operation of commissions inquiring into subjects as serious and as sensitive as these. It is hoped that is what the Bill will provide.
The State has a responsibility to act as quickly as possible to provide a forum where victims of abuse and other serious issues can tell their stories and justice can be served. The Bill does everything to facilitate the voluntary co-operation of witnesses. Evidence will generally be taken in private and without legal representation. This is a very important aspect of the Bill. As a result the process will become more personal. Witnesses will not have lawyers badgering and cross-examining them. The purpose of these commissions will be to listen to grievances and discover the truth in a less adversarial atmosphere, not to point the finger of blame or doubt as happens in a court where the main aim of the lawyer is to win rather than discover the facts. The identity of witnesses will be protected in the interests of the investigation. This is very important, first, in order to encourage witnesses to attend and, second, to reduce the stress and anxiety caused to witnesses.
I welcome the flexibility of the commissions. They will be prepared to accept evidence by video link or by way of affidavit. This aspect is extremely important for witnesses for whom recalling events is traumatic without being surrounded by judgmental eyes. This will ensure that witnesses feel secure enough to give their evidence without feeling they are on trial. It is also helpful from a geographical point of view, as some witnesses may be unable to travel to a commission.
It is also essential, however, that the commissions have the power to ensure compliance with investigations. Where important witnesses refuse to attend, the Bill provides the commissions with the power to give direction to attend to answer questions and disclose and produce documents, to enter and search premises, to seize documents, and to make determinations where privilege is claimed in respect of information and documents.
It will be an offence to obstruct a commission or to fail to comply with its directions or to give false evidence. In addition, a commission may refer certain matters to the High Court for its directions, and failure by a witness to comply will give rise to contempt of court. This aspect of the Bill is essential to ensure that a commission is totally competent. It would make most investigations impossible if key witnesses refused to turn up.
One of the main aspects of this Bill is the establishment of a flexible investigative mechanism for the State. There will not be a single or permanent investigative body. Each commission will be designed to suit exactly the needs of the matter being investigated. We will now be able to draw on a wide range of skills and expertise in order to establish a commission best suited to investigating particular issues. This is very important and will give the commissions a multidimensional aspect. The experience of some members will complement the expertise of others and vice versa and the Bill will ensure that each commission will be totally competent to investigate each case.
The new mechanism of investigation created by this Bill will provide a more timely and more cost effective investigation of serious social issues. That the commissions established as a result of this Bill will greatly reduce the need for legal representation means that investigations will cost much less. Reports in today’s newspapers estimate that to date we have spent €120 million, and it is suggested that the overall cost could be as much as €1 billion. It is not hard to imagine the number of hospital beds that could be provided or the number of hospitals and schools that could be built with that amount of money. What is happening is totally immoral. Inquiries will cost less. However, their effectiveness will not be diluted in any way. The opposite will be the case as the ability of commissions to investigate will be enhanced. The reduced need for legal representation will also ensure that commissions can reach a speedier conclusion to an investigation.
The Commissions of Investigation Bill can only be welcomed. It will provide the State with a speedier and more cost effective means of investigating serious issues. Flexibility will ensure fair procedures and competent investigation. I commend the Bill to the House.
Mr. B. Hayes: I welcome the Minister to the House. He published this important Bill more than 18 months ago and none of us should underestimate its significance. If this Bill is embraced and the newly established commissions that will investigate matters of public concern in the future are successful, we will have turned a corner in terms of providing a non-judicial form of inquiry which will be outside parliament and outside the courts but will still provide satisfactory results for the public and politicians.
I am a great believer in parliamentary inquiries. There is considerable scope within the judgment on Abbeylara as to what politicians can inquire into. We clearly cannot make findings of fact against individuals. However, we can make recommendations in connection with general policy matters. Too often we have underestimated the role and significance of parliamentary inquiries within our democracy. In the first instance, they are cross-party inquiries, which overcome the type of party-political backbiting that goes on in this and the other House. Second, they are a very cheap way of doing serious work. Senator Jim Walsh’s work with the justice committee in the context of the Barron report resulted in the publication of a very good report in a very short time and cost a very small amount of money. We should look at the potential of parliamentary inquiries that the Abbeylara judgment gives us. Politicians have too often said that the Abbeylara judgment dilutes parliamentary inquiries. It does in some respects, but in other respects it points a way to the future.
I understand the Government can, by resolution of both Houses of the Oireachtas, establish a commission of investigation. The benefit of this commission is that it will do its work in private, call its witnesses, seek orders to ensure people attend and seek orders to ensure that papers are delivered. At the end of that process, it can make a recommendation for a full-blooded tribunal, it can simply hand over the matters it has found to the authorities for a criminal investigation or it can report back to the Oireachtas. That is the flexibility we need. Our big problem to date has been that almost all tribunals have been in public. That is the great dilemma. Once something is in public, the costs of the tribunal inevitably increase. This is because people want their reputations upheld, believe they have a right to cross-examine witnesses who say adverse things about them and have a right to uphold their good names.
By giving flexibility, which the Bill does, to the various commissions that are established, we will be doing a good service because we will be giving people the power to make the common sense judgments they need to make. If one reads the fourth interim report from Judge Mahon on his tribunal, it is a cry for help. We established the terms of reference of the Flood tribunal and we made an absolute hames of it. In the last term of reference, we opened up any other matter that is brought to the attention of the tribunal. This means that by compulsion it must investigate everything. It cannot make the common sense judgments that all of us make in our daily lives because it does not have the power to do so. The commission will now ensure that such a common sense approach will be taken.
Judge Mahon’s report is a cry for help. We all have an obligation to change the terms of reference, to give the tribunal the power to get on with its work and to make the distinction between significance and insignificance. While we want everything to be out in the open, the dilemma is that it is very costly and it automatically ensures rebuttal and cross-examination. It also has to be said that if a person makes an allegation against another individual, it is not fair that such an allegation is allowed to be in the public arena for months or years without the named individual having the chance to rebut the allegation. That is not fair in any normal democracy and it has to be addressed.
The role of star witnesses is another issue to be addressed. If one is performing publicly at these tribunals, one thinks of the headlines that will appear the next day. The headlines determine what is going on at the tribunal. It is another downside to the public side of the tribunal. It would be much easier to gather information and come to speedy conclusions if it was in private. It would also be at less cost to the taxpayer.
The Minister of State at the Department of Health and Children, Deputy Lenihan, stated that the commitment towards the new commission approach came as the result of the allegations of sexual abuse of children by priests in the Dublin dioceses. One of the women who bravely took this matter into the public arena was a constituent of mine called Marie Collins. She has asked, through her group, that the very first commission to be established once the Bill goes through both Houses should look at the Dublin dioceses. This would be done in private to find out exactly if additional inquiries need to take place. That commitment was given when the Minister first mooted the proposal. Is it the intention of the Government that it would be the first commission?
I agree with Senator Terry that in giving the Government the power to make the resolution, we are giving it significant power. It would have been preferable if an all-party committee established a resolution before both Houses and gave possession of the commission to both Houses of the Oireachtas, rather than to the Government. One of the benefits of a tribunal is that it is, by and large, an animal of the Oireachtas rather than of the Government. We could do a disservice to the commission by ensuring that it is only established on resolution of the Government and not of the Houses in general.
Minister of State at the Department of Finance (Mr. Parlon): I thank Senators for their contributions to the debate. I am very pleased that the Bill has been broadly welcomed on all sides of the House. This indicates that it is not only a timely measure but that it addresses many of the major concerns about current arrangements.
This Bill is very significant reforming legislation and in the fullness of time it will be seen as a major step forward in the way we conduct public investigations in the State. We are all aware of the increasing demand for public investigations as a means of dealing with issues of major concern. There is a reasonable expectation that such investigations will produce quick and satisfactory outcomes. However, these expectations have too often been frustrated and, as a result, the investigation process has been damaged by perceptions of delay, obstruction and serious cost implications. This was outlined in particular by Senator Quinn when he referred to the cost and length of the major tribunals. The structures and processes provided for in the Bill will go a long way towards remedying many of the problems associated with the current arrangements.
No one has claimed that the Bill represents a solution to all the problems currently associated with public inquiries and investigations. However, I am satisfied that it provides the State with an effective and additional means of carrying out such inquiries and investigations. The new procedure is flexible and can be applied in a very wide variety of circumstances. It is user friendly as it creates a less adversarial environment and in that way it facilitates witnesses who are anxious to co-operate with a commission. Senators made the point that some lawyers are out to win and be seen to win, rather than get to the bottom of the matter and discover the truth. The Bill also provides a comprehensive framework for dealing with legal and other costs, including the possibility of tendering for services. Timeframes are established at all stages of an investigation, thus ensuring timely delivery of results. The Bill represents a balance between the public’s right to know and the protection of the good name and reputation of a witness.
I believe that a commission of investigation established under the Bill will represent good value for taxpayers money. It will be cost effective and timely. It will deliver a satisfactory result and will help restore faith in the effectiveness of public inquiries. I have taken note of concerns raised during the debate and I will bring these to the attention of the Minister for Justice, Equality and Law Reform.
Senator Terry raised concerns that the role of the Oireachtas was too limited while the Minister had too much of a role. The possibility of public hearings depends on the agreement of the commission. A witness cannot demand that a private hearing occur. Senator Terry also noted that a final report is awaited from the Law Reform Commission before a general review is possible.
Senator Walsh also referred to the role of the Oireachtas and that we should learn from the past that the terms of reference were too wide. Senator Brian Hayes also referred to such mistakes. Senator Walsh felt that it was a very well constructed alternative to the current system. That hopefully will be the case. The Bill deals with time and cost and these are very expensive lessons we learned from the past. Senator Walsh also felt that strong powers were very necessary.
Senator Kett welcomed the Bill and raised concerns about the duration of the tribunals, how they departed from the terms of reference and lost focus at significant cost and duration. Senator Tuffy welcomed the Bill in principle but will propose amendments. The tribunals have been doing worthwhile work, but the cost and delay factors have been highlighted, and the consensus among Senators is that we cannot continue to support them. Senator Brian Hayes made some recommendations on what the new commission might deal with, and I am sure that it will not be short of work. His specific recommendations will be noted, and I will pass them on to the Minister.
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