Select Committee on Public Administration Written Evidence


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





 
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