Memorandum by the Law Reform Commission
of Ireland (GBI 05)
The Law Reform Commission published its Consultation
Paper on Public Inquiries Including Tribunals of Inquiry on 31
March 2003.
At present, there are several legislative codes,
which provide the legal framework for different types of public
inquiry in Ireland. The Consultation Paper dealt with a number
of these, namely: Company Inspectors; the Commission to Inquire
into Child Abuse, Parliamentary Inquiries, and Tribunals of Inquiry.
It also considers five themes, which are significant to all forms
of inquiry, namely, constitutional justice, publicity and privacy,
information gathering, costs, and the difficulties arising in
a subsequent criminal trial, where this covers the same ground
as an inquiry. Although, these issues were dealt with mainly in
the context of tribunals of inquiry, the Commission was of the
view that the comments and proposals made in respect of them are
relevant to the other types of public inquiry.
The legal code presently governing Tribunals
of Inquiry is made up of six separate and inconvenient-to-use
statutes. To meet this difficulty, the Commission included in
its Paper a comprehensive draft Bill that not only consolidates
the existing legislation but also incorporates a number of substantive
changes. Among these is a requirement that a tribunal of inquiry
should be under a legal obligation to comment on its terms of
reference within four weeks of beginning its work. In addition,
various methods are proposed for fast-tracking judicial review
proceedings taken in respect of decisions of tribunals of inquiry.
The Commission also proposed that an express power should be given
to the relevant minister or the Government, acting on foot of
a resolution of both Houses of the Oireachtas, to terminate a
tribunal of inquiry where it has been sitting for some time and
seems unlikely to bear fruit. The Commission also examined the
question of whether tribunal proceedings should be broadcast.
It specifies certain circumstances in which broadcasting should
be permitted, and includes a draft section that sets out guidance
to those chairing inquiries in deciding whether to allow broadcasting.
In the Appendix to the Consultation Paper, there is a written
protocol, dealing with such questions as: camera angle, editing
or copyright, which is presently being used in relation to the
broadcasting of the Dr Shipman Inquiry in Britain.
This Consultation Paper noted that a very extravagant
measure of constitutional justice has been granted sometimes in
circumstances where it was not legally or constitutionally required.
For instance, though it may have been considered appropriate for
other reasons, it was not constitutionally required that the victims,
for instance, of child abuse should be separately represented,
since the questions put on their behalf could have been asked
by counsel for the tribunal. Likewise, those who make allegations
against a person whose conduct is under investigation, such as
the deputies before the Beef Tribunal who had relayed their constituents'
allegations against Goodman International, need not be separately
represented any more than the witness in a court case. It bears
saying, too, that the amplitude of constitutional justice granted
may have something to do with the fact that inquiries have sometimes
been designed to go beyond what the Commission considers should
be their primary task of discovering what happened and why, and
venturing into the role of assigning blame, which may best be
left to a criminal trial.
The Commission also addressed the question of
how far, consistent with fair procedures, it is possible, by altering
the features of public inquiries, to reduce the entitlement to
constitutional justice, which creates much of the attendant expense
and delay. The Commission reached the conclusion that the best
way of doing this would be to ensure that the inquiry has one
or more of the following characteristics:
(i) It would be held in private, though,
at the same time, the report emanating from the inquiry may be
published. The obvious advantage of this is that accusations against
a person, made by possibly prejudiced witnesses and often amplified
by the mass media, are not bruited forth to the world immediately.
At most, if the inquiry finds the accusations to be substantiated,
a version of them will appear in the final report, together with
the inquiry's measured judgment;
(ii) The inquiry report would emphasise the
flaw or malfunctioning of the institution, big business or profession
involved, rather than the sins of an individual wrongdoer;
(iii) As well as the conclusions, where a
point is disputed, the Report would include comments on or even
disagreement with those conclusions by any person whose good name
or conduct is called into question. Thus, each side of the argument
is recorded.
Based on this analysis, the Commission recommended
that legislation be enacted providing for private, low-key inquiries
which concentrate on the wrong or malfunction in the system and
not on the wrongdoer.
The Commission also examined the issue of costs.
The Commission emphasised that, under the existing law, the State
is not legally or constitutionally required to pay the costs of
all parties represented before a tribunal. Costs were not paid
to every party, for instance, in the Whiddy or Stardust Tribunals
of Inquiry, and this only came to be regarded as the common practice
in the Beef Tribunal. The Commission proposed legislation that
would make this even clearer than it is in the existing law.
As regards the separate question of how to minimise
the amount of costs, the Commission emphasised that the inquiry
itself should give considerable thought to what level of representation
it engages and allows for particular tasks. There is some scope
for a closer match between the difficulty of the work and the
ability and experience (and therefore cost) of the lawyer retained
to do it; for instance, not paying a senior counsel to do work
which could be done as well by a junior counsel. Secondly, the
arrangements regarding the division of subject-matter and the
sequence in which topics are taken, which have been adopted in
recent tribunals, should be followed, so as to minimise wasted
time. Thirdly, the Commission suggested that a means of calculating
legal costs and expenses be devised, which is more appropriate
to pay for guaranteed employment for several months or years,
rather than the present system of a daily rate, which was originally
designed for a trial which lasts several days or, at most, weeks.
(Such a formula would naturally take it into account that a barrister
who has been employed full-time by a tribunal for some time, cannot
immediately resume private practice at the same level, because
the solicitors who sent work will have briefed other barristers.)
However, it must be said that, if leading practitioners are to
continue to be attracted to this work, the change in the way payment
is calculated will not necessarily mean a significant reduction
in the total cost. Fourthly, it is also suggested that a "scheme"
whereby a barrister is remunerated for work done rather than simply
on a daily basis be put in place where it is appropriate. Finally,
the Commission recommended that where possible, legal representation
should be pooled, where parties might have interests in common.
April 2004
|
