Tribunals of Inquiry have been established since before the foundation of the State on a range of matters. These include major accidents and incidents, allegations of corruption and wrongdoing, accidental deaths, accidents and disasters.
A Tribunal is not a court. It does not determine rights or impose liability, either civil or criminal. However, they make recommendations or findings and may have an impact on other or future proceedings.
Traditionally, tribunals were established under the Tribunal of Inquiry Evidence Act 1921, as subsequently amended. Under that Act, a Tribunal of Inquiry may be established to inquire into a matter of urgent public importance. The purpose of the Tribunal is to establish the relevant facts authoritatively and report them. Recommendations may be made in relation to future recurrence of the matters concerned.
Many of the early inquiries established by the State related to policy type matters including marketing of butter, ports and harbours, retail prices, public transport and the distribution of milk. Many such matters are now more appropriately dealt with by way of Oireachtas inquiry or other non-statutory commission or reporting agency.
The Tribunals have inquired into accidents and incidents’ and allegation of wrongdoing in the public service. Tribunals were established in the 1970s and 80s dealing with the Whiddy Island disaster, the Kerry Babies scandal, Stardust fire, Beef Processing Industry, Blood Transfusion Board, political corruption, planning matters, Garda conduct and collusion with the IRA.
Tribunals are primarily inquisitorial in nature. Their function is to investigate the facts and make findings. This contrasts with the adversarial nature of both civil and criminal proceedings.
The Tribunal seeks to establish what has happened, circumstances in particular where facts are disputed, or the causing of event or background is unclear. It seeks to learn from what happened and prevent recurrence by setting out the lessons and recommendations as to changing practice, law or otherwise.
The Tribunal seeks to expose and provide an opportunity for reconciliation and resolution in relation to matters. It seeks to establish accountability blameworthiness and, in some cases, hold persons accountable. In some cases, Tribunals have been used for political purposes to establish or defend accusation.
Tribunals are established by a resolution of both Houses of the Oireachtas on a proposal of the government. The terms of reference are to be set by the resolution of the Houses of the Oireachtas. This is usually drafted in the same manner as legislation. There is a procedure for amending the terms of reference.
Amendment of Terms
The 1998 Act made provision for an amendment of a resolution where the Tribunal has consented to the amendment following consultation with the Tribunal and the Attorney General on behalf of the Minister or where the Tribunal has requested the amendment. The tribunal is not to consent or request an amendment where it is satisfied the amendment would prejudice the legal rights of persons who have co-operated or provided information to the Tribunal. There is provision for an amendment of the terms of reference of the Commissions of Investigation under the Commissions of Investigation Act 2004.
The 1979 Act deals with the membership of Tribunals of Inquiry. The Tribunal may sit alone or may sit with more than person. There may be assessors. The government appoints the members of the Tribunal of Inquiry. The Commissions of Investigation Act provides that the members are to be appointed by government.
The legislation does not provide for qualification of members. The general practice has been that judges or retired judges have been appointed as chairman or as members of the Tribunal of Inquiry. In the case of the Commissions of Investigation the appointees are to be persons who having regard to the subject matter have the appropriate experience, qualifications and expertise.
An appointment can be terminated on the basis of inability to act. In the case of a Commissioner of Investigation there are no express provisions for removal.
The 2002 Act provides for appointment of a new member of an existing Tribunal. This is not to affect decisions on queries made by the outgoing member. The Act also provides for appointment of a reserve member. They are to sit with members during proceedings and consider evidence, give and examine documents and other items as they are produced.
They are not entitled to participate in the tribunal or proceedings or determine the outcome.The purpose of a reserve member is that he is available to replace the member should that become necessary.
Assessors under the Tribunal of Inquiry legislation are not members. They are experts who access the inquiry. They are appropriate where certain specialised issues are involved such as where the investigation is into a particular subject matter which requires technical assistance to illuminate.
The procedure before Tribunals must comply with the principles of constitutional justice. This has been established in a long series of cases going back over 50 years. Many of the Tribunals in the last 20 years have been the subject of litigation in the courts which have sought to place limits or circumscribe the tribunals on the basis that they were not affording the parties affected constitutional justice.
Tribunals determine their own procedures. Largely their procedure involves the following:
A preliminary investigation. This is a preliminary information gathering stage. The Tribunal decides what it considers relevant to the inquiry.
Evidence is served on persons who are likely to be affected. A public hearing follows with verbal evidence and cross examination of persons affected by the evidence. Finally, a report is prepared setting out the final findings of fact and making recommendations based on those findings.
Tribunals have considerable freedom in setting their terms and procedures. However, they are subject to requirements of fair procedures and constitutional justice. See generally the sections on administrative law and constitutional justice. Tribunals may determine the details of their procedure. They may decide to exclude persons or the public generally from inquiry.
Right to Fair Procedures
The Committee of Public Accounts of Dáil Éireann (Privileges and Procedure) Act 1970 was enacted to assist in investigation by the Committee of Public Accounts into certain aid for Northern Ireland and the use to which it was alleged to have been employed. If a person refused to answer a question posed, the Committee might certify the offence to the High Court which after such inquiry might punish or take steps to punish the person in the same manner as if he had been guilty of contempt of court.
Serious allegations were made against a witness Mr Paudric Haughey by way of hearsay evidence. Mr. Haughey refused to answer questions and the Chairman certified in the above manner to the High Court. The High Court convicted him and sentenced him to six months imprisonment.
In an appeal to the e Supreme Court, it held that Mr. Haughey should have been afforded the means of defending himself. At a minimum, he should have been furnished a copy of the evidence reflecting on his good name, he should have been allowed to cross-examine by Counsel his accusers, should have been given the opportunity to rebut evidence have been permitted to address the committee. As this had not been done, he had been deprived of his constitutional right and the course of action was invalid.
There have been several later cases challenging Tribunals of Inquiry established under resolution of the Dail over the last 30 years. They have reaffirmed and refined the principle of constitutional justice in the context of Tribunals of Inquiry. Later cases have indicated that the nature and extent of constitutional rights will depend on the particular circumstances.
The principles apply where a person’s constitutionally protected rights are at risk. Where vital constitutionally protected rights are not an issue, the protections may be less extensive. Mere contradiction of other evidence does not amount to an imputation of lying or which affects a person’s good name.
The Tribunal of Inquiry Act gives discretion to allow legal representation to persons appearing. The constitutional right to legal representation does not apply to mere witnesses under the Re Haughey principles. It applies where the persons conduct is the subject of the inquiry and the persons rights are threatened or require protection.
However, the Tribunal may grant legal representation even if this condition is not satisfied. Legal representation has been afforded to relatives or persons affected by the subject matter of the dispute such as where there is an inquiry into a death.
In deciding whether to grant legal representation, the Tribunal considers constitutional justice requirements primarily. It then considers whether as a secondary matter the representation would assist the Tribunal. It also takes into account the adequacy of the Tribunal’s counsel and legal team in protecting the party’s interests.
Full representation may be granted for the benefit of a group or category of persons. In some cases, legal representation will be required throughout the whole tribunal. In other cases, representation in particular phases will suffice.
The general principle of a public hearing is to ensure public confidence. If there are counter arguments in terms of privacy, the Tribunal may hear part of the proceedings in private.
The Tribunals have powers to enforce attendance of witness, examine them on oath and compel production of documents. They may issue a commission or request witnesses to be examined abroad.
Generally, the Tribunal may make such orders as it considers necessary for the purpose of its functions. It will usually have the powers and rights and privileges vested in the High Court
The 1997 legislation allows a Tribunal to apply to the High Court for an order enforcing its order. Where a person fails or refuses to comply, the High Court makes such order as it considers necessary and just to enable the order to have full effect. Failure to comply is contempt of court.
The High Court is empowered to commit a witness for contempt by reasons of failure to cooperate with the Tribunal. The sanctions imposed may be both punitive and coercive. Breach is also an offence which may be prosecuted.
The legislation on costs for the Tribunals has been amended on the number of occasions. Where the Tribunal is of the opinion that having regard to the findings of the Tribunal and other relevant matters, including the terms of the Tribunal, failure to co-operate or provide assistance or knowingly or giving false and misleading information, there are sufficient reasons making it equitable to do so, the Tribunal either with its own motion or on the application of any person, order that the whole or part of costs of any person appearing before the Tribunal be taxed by a Taxing Master and paid by any other person named in the order. It may order that the cost incurred by the Tribunal as taxed, are to be paid to the Minister for Finance or another person as directed.
The power to award cost is discretionary. Costs may be awarded in full or in part. Costs may be refused to parties appearing. As set out above, parties who have failed to cooperate and knowingly given false evidence or obstructed the Tribunal may be ordered to pay the Tribunal’s costs.
There is no provision for legal aid before Tribunal. The courts have held that there was no constitutional right to legal aid in those circumstances.
The fact that an adverse finding has been made against a person in the subject matters of the Tribunal does not necessarily mean that he will be refused his costs. Regard is to be had to the findings of the Tribunal and other relevant matters. The basis of this is there are sufficient reason for rending it equitable to do so, to award cost against a party.
Even if a person has been found to have committed some wrongdoing, he may if he has co-operated with the Tribunal be granted his costs in accordance with the Tribunals discretion.
The Tribunal legislation does not give a specific power to grant, make or publish interim or final reports. However, this is required by the terms of this resolution and is accordingly it may be implied that an interim report may be required.
Where the report may prejudice pending criminal proceedings, the Minister may apply to court for directions regarding publication. The DPP and Attorney General must be notified of the application and given the opportunity to make submissions. The proceedings may be in public or private.