Brian Lenihan Jnr (Dublin West, Fianna Fail)

I move: "That the Bill be now read a Second Time."

I am bemused by the amendment tabled in the name of Deputy Charles Flanagan. It proposes that we delay consideration of this significant reform of the way in which we conduct tribunals until after the completion of the current tribunals which, as I made clear several times over the weekend, will not be affected by this Bill. The Law Reform Commission has issued a report on tribunals and made recommendations to the House that would lead to more efficient and effective management of tribunals. The Bill before the House relies heavily on the commission's report. The Government believes it is important that future tribunals should be more efficient and cost effective. That view is shared by the vast majority of taxpayers who have expressed frustration at the mounting cost of tribunals time and again, yet the main Opposition party has tabled a motion seeking to delay the passage of this responsible Bill. This does not make sense. It is, therefore, not surprising that Fine Gael has been languishing on the Opposition benches for the past ten years.

Deputy Kenny accused the Government of trying to intimidate the current tribunals by bringing forward this legislation now. It is my job to ensure tribunals are efficient and cost effective. It is my duty to the taxpayer. That is why the legislation is before the House today. If it cannot be considered at the end of a Dáil session, surely it can be considered at the commencement of another.

Let me outline the details of this important legislation. The main legislative vehicle for the public investigation of matters of urgent public importance is the Tribunals of Inquiry (Evidence) Act 1921, as amended by a sequence of legislative measures enacted between 1979 and 2004. It may be useful to recall the seven amendments to the original Act that were found necessary in this period. Usually, the need for the amendment became apparent in the course of the work of the relevant tribunal. In this regard, consider the following examples.

The Tribunals of Inquiry (Evidence) (Amendment) Act 1979 remedied certain defects that had emerged in the course of establishing the inquiry into the Whiddy Island disaster. That Act created a number of offences for non-co-operation with a tribunal. It provided a statutory basis for the establishment of multi-member tribunals. It also provided for the summoning of witnesses, compelling the production of documents, the issuing of a commission to examine witnesses abroad and, importantly, allowed a tribunal, where there were sufficient reasons rendering it equitable to do so, to make orders for the payment of the costs of a person represented before it.

The Tribunals of Inquiry (Evidence) (Amendment) Act 1997 was a direct response to the McCracken tribunal and included a power for the tribunal to direct that its own costs could be paid by a person who had caused those costs to be incurred through his or her non-co-operation. The Tribunals of Inquiry (Evidence) (Amendment) Acts, Nos. (1) and (2), of 1998 allowed for the changing of a tribunal's terms of reference at the request of the tribunal or following consultation between the tribunal and the Attorney General on behalf of a Minister.

The Tribunals of Inquiry (Evidence) (Amendment) Act 2002 included provision to enable additional members to be appointed to a tribunal, as was necessary in the case of the Flood tribunal. The Tribunals of Inquiry (Evidence) (Amendment) Act 2004 was necessary to ensure Mr. Justice Mahon, as the new chairperson of the tribunal to inquire into certain planning matters and payments, previously chaired by Mr. Justice Flood, could make orders regarding applications for costs incurred during the tenure of the preceding chairman.

The extensive powers of tribunals set up under the tribunals of inquiry legislation have facilitated the tribunals in establishing the facts in respect of certain matters of serious public concern. A tribunal of inquiry has a wide range of powers which, as I have outlined, have been strengthened in successive items of legislation to secure the co-operation of persons with their inquiries and there are significant sanctions for persons who fail or refuse to comply with a direction of a tribunal.

The Law Reform Commission carried out a comprehensive examination of tribunal legislation. In May 2005, it published its report on public inquiries, including tribunals of inquiry. The report provides a well-reasoned and well-informed basis for recommendations for reform. There are over 50 recommendations which are designed to ensure the efficient and effective management of tribunals and cover areas ranging from the establishment of tribunals, the setting of terms of reference for tribunals, membership of tribunals, procedures at tribunals, preparation and publication of reports of tribunals and, of course, an issue of major concern to the Government, namely, the costs, particularly the legal costs of tribunals. The Bill before the House has significant regard to that report. I pay tribute to the commission on its report, which has informed the Bill before the House.

I am happy to say the Bill, by providing a modern comprehensive statutory framework governing all aspects of a tribunal from the time of its establishment to publication of its final report, is also very consistent with the process of reform to which the Government committed itself in the 2004 White Paper, Regulating Better. The Bill is also consistent with the commitment in An Agreed Programme for Government to: "implement comprehensive reform of the legislation governing Tribunals of Inquiry so that all future Tribunals will operate in accordance with modern and efficient management practices, with focused terms of reference, and in a manner which ensures that the costs and duration of Tribunals are known and controlled."

The issue of legal costs associated with the operation of tribunals of inquiry, especially third party legal costs, has been to the forefront of public and political consideration. There is justified concern at the mounting legal costs of some current tribunals. Indeed, I recall some Members opposite expressing such concern. The need to control such costs is evidenced by the fact that, to the end of October 2007, the total cost to the Exchequer of completed and sitting tribunals of inquiry and other public inquiries was some €316.6 million. Of this, €228 million was in respect of legal costs and €88 million related to other costs. The figure for legal costs includes €110 million in respect of the third party legal costs awarded to date.

In respect of tribunals of inquiry and public inquiries which are yet to be completed or for which claims for costs still remain to be settled, the total cost to the end of October 2007 is €211 million, of which €137 million is in respect of legal costs, of which €42 million relates to third party legal costs. These third party legal costs are expected to rise sharply as eligibility for such costs is generally determined only towards the end of tribunal hearings.

We are all very much aware that the constitutional entitlement to legal representation for those whose good name or personal and property rights are at issue, combined with the necessity for a tribunal to be independent in its operations, means that it can be difficult to control costs once an inquiry is established.

The provisions in the Bill will not prevent legal representatives from charging whatever level of fees they wish to or can agree with their clients. It will, however, give a clear indication of the likely maximum level of fees for which the State will be liable. The payment of any amounts of legal fees over and above the levels set down by the relevant fees regulation will be a matter for the legal representative and client to resolve between themselves.

I propose to outline the provisions of the Bill. I should say that many of the provisions restate, with minimal or no amendment, certain existing provisions of the current legislation concerning the operation of tribunals. Part 1 of the Bill contains standard provisions dealing with preliminary matters such as the short title, commencement and interpretation.

Part 2 contains many new provisions dealing with the establishment, terms of reference, suspension and dissolution of tribunals. Section 3 provides that the Government may, by order approved by both Houses of the Oireachtas, establish a tribunal to inquire into any matter of urgent and significant public importance. The order must specify the matter considered by the Government to be a matter of urgent and significant public importance, the terms of reference of the tribunal and the Minister who is to have responsibility for the tribunal.

Clarity is provided at section 4 of the Bill as to the inquisitorial nature of a tribunal and its independence — aspects of a tribunal which are often misunderstood. It is important for tribunals to be able to function properly and to be resourced for this purpose.

Section 5 enables the responsible Minister, with the consent of the Minister for Finance, to provide the tribunal with the administrative support, including counsel and solicitors, and resources considered necessary. With a view to ensuring efficiency and value for money, the administrative support may consist of public servants by way of secondment or persons engaged from the private sector by the responsible Minister or the tribunal, if necessary by way of a competitive tendering process.

It is important that the terms of reference for a tribunal should be drafted as precisely as is practicable and that they can be amended as required following approval by both Houses of the Oireachtas. Sections 6 and 7 of the Bill deal with this aspect and update the current provisions in the 1921 Act.

Section 8 is a new provision which requires a tribunal within 30 days of, and not later than 60 days after, its establishment, in consultation with the responsible Minister, to prepare a statement containing an estimate of all the costs, including third party legal costs, likely to be incurred by the tribunal in performing its functions and an estimate of the timeframe for the submission of the final report. This statement must be amended where it becomes apparent that the estimate is no longer appropriate. The statement, or amended statement, must be laid before the Houses of the Oireachtas.

It is my intention to bring forward a technical amendment to section 8 on Committee Stage. As currently drafted, the section could be interpreted as requiring a tribunal to include in the statement only such third party legal costs as may be incurred by the tribunal itself rather than such costs incurred by, for example, witnesses who have been granted legal representation before the inquiry. The intention of requiring a tribunal to prepare a statement of estimated costs is to provide the State with a realistic estimate of the cost to the Exchequer of the inquiry. The proposed amendment will copper-fasten this intention by clarifying that the statement must contain an estimate of all third party legal costs likely to be incurred in consequence of the inquiry and not just third party legal costs which may be incurred by the tribunal itself.

A tribunal of inquiry can only be established by the Oireachtas. However, there is no statutory basis whereby the Oireachtas, should it so wish, can suspend or dissolve a tribunal. Thus, having received the advice of the then Attorney General on this matter and in line with the recommendations of the Law Reform Commission, the Bill provides, in sections 9 and 10, that the Government may, for stated reasons and on foot of an order approved by each House of the Oireachtas, suspend an inquiry in whole or in part to allow for the completion of any other inquiry or the determination of any civil or criminal proceedings relating to matters to which the inquiry relates or dissolve a tribunal.

Before the Government makes an order under either of these sections, the responsible Minister must consult with the tribunal. I also intend to bring forward on Committee Stage, a technical amendment to section 10 which will ensure the chairperson will not be required, on dissolution of a tribunal, to deposit material which would prevent the tribunal from performing its functions in respect of preparation of its report or in respect of the making of an order for costs.

Section 11 is a new provision which provides that an inquiry comes to an end when a tribunal, following submission of its final report to the responsible Minister, notifies the Minister that it has fulfilled its terms of reference. Again, I intend to bring forward on Committee Stage a technical amendment to section 11 which will provide that the suspension or dissolution of an inquiry will not of itself cause any civil or criminal proceedings pending or in progress in respect of that tribunal to be discontinued or otherwise to fall.

Part 3 of the Bill deals with issues of civil and criminal liability. Being inquisitorial in nature, a tribunal cannot determine any person's civil or criminal liability. Section 12 acknowledges this fact but in order to ensure that a tribunal can fulfil its terms of reference, provides that a tribunal is not to be inhibited in the performance of any function by any likelihood of liability being inferred from such performance. Section 13 restates existing legislative provisions governing the non-admissibility in criminal proceedings of evidence given to a tribunal.

Part 4 of the Bill modernises existing legislative provisions dealing with membership of tribunals and the appointment of experts and researchers. Section 16 is new and provides that the responsible Minister may, by notice approved by both Houses of the Oireachtas, terminate the appointment of a member or reserve member of a tribunal for specified reasons. Before terminating an appointment of a member, the responsible Minister must inform the member of his or her intention, take into account any representations and consult with other members of the tribunal if requested by the member concerned and with the chairperson. As with the provisions relating to the suspension or dissolution of a tribunal and in line with recommendations of the Law Reform Commission, termination of the appointment of a member or reserve member of a tribunal requires approval of the Oireachtas.

Section 17 is also new and provides for the appointment, subject to ministerial approval, and termination of appointment of experts by a tribunal. Experts will not be members of the tribunal concerned and must not disclose information, documents or material obtained in the performance of their functions except where required by the tribunal, with the consent of the tribunal or on foot of a court order.

Part 5 of the Bill contains many new provisions dealing with the proceedings of tribunals. Section 18 requires a tribunal to carry out its functions as efficiently, effectively and expeditiously as practicable having regard to its terms of reference. A tribunal is precluded from inquiring into a relevant matter unless it is satisfied that the cost and duration of that inquiry are likely to be justified by the importance of the facts that are likely to be established in consequence of the inquiry.

Under section 19, a tribunal must establish rules and procedures, which must be given to all persons likely to be affected by them, relating to receiving evidence and submissions. Section 20 allows uncontested evidence, which is essentially evidence in a written form and circulated to those persons who have a right to receive it, to be simply taken as if it had been read into the record. A party who insists on such evidence being taken orally, notwithstanding the opinion of the tribunal that it should not be so taken, may be liable for any additional costs incurred as a result of the evidence in question being taken orally.

By their very nature, tribunals of inquiry are held in public. However, there may be instances where, in the opinion of the tribunal, it is in the public interest not to do so or where there is a risk of prejudice to criminal or civil proceedings that are pending or in progress. In line with a recommendation of the Law Reform Commission, section 24 builds on existing legislative provisions in section 2(a) of the 1921 Act which prohibits a tribunal from refusing to allow the public to be present at any of the public proceedings of the tribunal except in cases such as those I have outlined.

Part 6 of the Bill deals with representation before tribunals and is a matter which has given rise to much publicity in the context of the cost to the Exchequer of such representation. Section 25 empowers a tribunal to grant, or refuse, an application for legal representation. The person seeking representation must state the reasons why he or she considers that representation should be granted, the number of representatives required and whether junior counsel, senior counsel, solicitors or otherwise, and to the extent practicable, the particular proceedings, or the particular parts, modules or other divisions of proceedings before the tribunal for which representation is required. A tribunal can only grant representation where it is satisfied the person's constitutional or legal rights are likely to be affected by the proceedings before the tribunal, or where there are exceptional circumstances for granting representation. The tribunal must provide written reasons where it refuses an application for representation.

Section 26 is new and empowers the tribunal, where it is authorising representation under section 25, to specify the maximum number of representatives which it considers may need to be retained by the person. The tribunal can specify, to the extent practicable, the particular proceedings, parts, modules or other divisions of proceedings for which the tribunal considers that representation should be granted. In the case of two or more persons, it can specify whether they should be represented on a joint basis in proceedings before the tribunal. The tribunal can specify whether counsel for the inquiry could represent the person concerned.

The person concerned is not obliged to follow the determination of the tribunal in this regard but, where he or she does not do so, the tribunal is prohibited from allowing costs over and above those which would have arisen had the person complied with the original determination. Deputies will appreciate that this is a significant new provision which will assist the chairperson of a tribunal in determining the total amount of costs likely to be incurred by the tribunal for the purposes of the statement of estimated costs required under section 8 of the Bill. Section 26 will also provide an indication to the person applying for representation as to the amount of costs which may be reimbursed if he or she co-operates with the tribunal.

Part 7 of the Bill deals with the powers of a tribunal and enforcement matters. Section 30, in line with a recommendation of the Law Reform Commission, provides for judicial review in respect of a challenge to a decision or determination of a tribunal. Section 31 enables a tribunal to apply to the High Court for directions on the performance of its functions.

Part 8 of the Bill, containing sections 32, 33, 34 and 35, provides a framework for the preparation of the report of a tribunal, an interim report at the request of the responsible Minister or of the tribunal's own volition, publication of the report or interim report and the admissibility of the report or interim report in civil proceedings. This part of the Bill has been drafted along the lines recommended by the Law Reform Commission. I intend to table an amendment on Committee Stage to clarify the timeframe within which a tribunal must prepare its report upon dissolution.

Part 9 of the Bill deals with costs and I propose to outline the provisions of this part in some detail. Section 36 modernises the arrangements currently contained in section 6 of the Tribunals of Inquiry (Evidence) (Amendment) Act 1979 dealing with costs and provides that an application for costs by any person who has incurred costs as a result of co-operating with a tribunal may be made, at the discretion of the chairperson, on the conclusion of particular proceedings, or on the conclusion of particular parts, modules or other divisions of proceedings, or on the conclusion of all proceedings, before the tribunal. It is a matter for the chairperson to determine if costs are to be paid and at what point.

In determining whether to award costs to a person, the chairperson must have reference to the following criteria: the nature and extent of co-operation given to the tribunal, including whether false or misleading information was knowingly or recklessly given to the tribunal; the findings of the tribunal; the appointment or other retention of persons with professional expertise which was unnecessary or excessive; the extent to which any costs incurred by a relevant person would have been incurred whether or not the relevant person had any dealings with the tribunal, including any case where the relevant person's co-operation with the tribunal was given in whole or in part through an employee of the relevant person; the extent to which any costs incurred by the relevant person were disproportionate in respect of the nature and extent of co-operation required by the tribunal of the relevant person and all other relevant matters falling within the terms of the resolution passed by each House of the Oireachtas or within the terms of the order establishing the tribunal.

Section 20 contains a provision which requires a tribunal to refuse, unless exceptional circumstances exist, to grant the additional costs incurred as a result of taking evidence orally where it has ruled that such evidence should not be given orally. Section 26 contains a similar provision which provides that the tribunal shall not, unless exceptional circumstances exist, allow costs over and above those which would have arisen had the person complied with the tribunal's original determination as to the level of representation required.

The chairperson may award costs against a person for the benefit of the Exchequer, either of his or her own motion or upon application by the responsible Minister or the Minister for Finance, where that person added to the duration of the hearings by knowingly or recklessly providing false or misleading information to the tribunal or otherwise failing to provide appropriate co-operation when it was in that person's power to do so. If the chairperson refuses an application for costs, he or she must give reasons for the refusal.

In all of the considerations in section 36, it should be noted that the award of costs is also subject to maximum amounts to be set out under the provisions of sections 38 and 39. I intend to bring forward technical amendments to section 36 on Committee Stage to make it clear that costs to be reimbursed by the State in the context of tribunals of inquiry will be costs that were necessarily incurred for the purposes of assisting the tribunal in its inquiry. For example, in the past, costs have been awarded for the engagement of public relations consultants by persons appearing before a tribunal. Such costs, which can fall to the State, must be circumscribed. Therefore, an amendment on Committee Stage will clarify that one of the factors which the chairperson must have reference to will be the appointment or other retention of persons with professional expertise that was unnecessary or excessive for the purposes of assisting the tribunal with its inquiry.

Other planned amendments to section 36 will introduce time limits for the submission of claims for costs and the possibility to request a tribunal to reconsider its order for costs in any given case. Section 37 repeats the provisions of section 6(1A) of the Tribunals of Inquiry (Evidence) (Amendment) Act 1979, as amended by the 2004 Act, which empowers the chairperson of a tribunal to make an order for costs in respect of any costs incurred, but which had not been determined, before his or her appointment. The chairperson must have regard to, inter alia, any final or interim report of the tribunal relating to its proceedings in the period before his or her appointment.

Section 38 is a new provision which provides that an award of costs under section 36 must not exceed the relevant maximum amounts applicable to various categories of costs specified in regulations under section 39. This section will provide a statutory basis for schedules of costs payable by the State on foot of tribunals of inquiry. The provision at section 38 will apply to any tribunal to which regulations under section 39 are expressed to apply, and to all future tribunals, and all costs incurred under those tribunals which fall into any of the categories of costs specified in those regulations. The Taxing Master of the High Court will not be permitted to allow any costs in excess of the maximum amounts specified in the regulations under section 39. Section 39 includes a provision, suggested by the Taxing Master, for a Taxing Master of the High Court, where practicable, to assist a tribunal in making an order for costs or assessing and measuring any costs to which such an order relates.

Section 39 is new and provides a regulation-making power for the Minister for Justice, Equality and Law Reform, with the consent of the Minister for Finance and having regard to what would be reasonable remuneration for services, including legal services, provided in or in respect of inquisitorial proceedings, to determine the maximum amounts of various categories of costs which may be paid, pursuant to section 36, to counsel or solicitors engaged by parties appearing before the tribunal or to the tribunal's counsel or solicitors. The regulations may specify different categories of costs; require the chairperson to provide reasons for granting or refusing costs; set the maximum amounts which may be paid by reference to, for example, a yearly, daily, hourly or other rate; and be expressed to apply to a particular tribunal, to particular proceedings or modules of proceedings or to specified costs or categories of costs.

Part 10 of the Bill contains section 40, which modernises existing offences and the penalties attaching thereto.

Part 11 contains sections 41 to 44, inclusive, which are technical provisions dealing with expenses, repeals and transitional matters, restriction of section 4 of the Data Protection Act and consequential amendments to other enactments respectively.

The Bill represents a comprehensive reform of the tribunal legislation consistent with the need for reasonable updating and modernisation. In summary, it contains the following significant features: the process for setting and amending terms of reference of a tribunal is clarified; within three months of its establishment, a tribunal will be required to produce a statement of estimated costs and duration of the tribunal which must be laid before both Houses of the Oireachtas — this statement must be subsequently amended after significant developments; the Government, for stated reasons and following a resolution of both Houses of the Oireachtas, will be able to suspend or dissolve a tribunal; provisions governing the taking of evidence, including a provision regarding the "reading-in" of evidence already available in written form and not disputed; the position with regard to the granting of legal representation before a tribunal is clarified to the effect that a relevant person must apply for representation and the tribunal will only grant the application where the person's legal or constitutional rights are likely to be significantly affected by the proceedings; the tribunal will state its opinion as to the numbers of the representation to be retained by a person that it will certify as being recoverable from the State; the responsible Minister will be able to request an interim report on the general progress of an inquiry, or of a particular aspect of an inquiry, from the tribunal; tribunal reports will be admissible in civil cases — the findings of facts in a report or the opinions expressed therein are prima facie evidence unless the contrary is shown; the position with regard to award of costs by a tribunal is clarified and co-operation with the tribunal remains the key determinant for an award of costs; and regulations, to be made by the Minister for Justice, Equality and Law Reform, with the consent of the Minister for Finance, will set out maximum amounts of legal costs recoverable.

I am confident the Bill will contribute positively to the future effective operation of public inquiries. I am willing to consider any amendments that might strengthen it. By putting in place a comprehensive statutory framework governing all aspects of a tribunal, from the time of its establishment to the publication of its final report, along the lines of this Bill, the interests of justice and public accountability will be advanced.

In commending the Bill to the House, I ask the Opposition, even at this late stage, to withdraw the amendment it intends to move so that, united in the House, we can proceed to make changes that are clearly in the public interest. I reiterate what I made clear in the brief debate that took place before Second Stage was formally moved, namely, that there is no intention to apply this legislation to the current tribunals, which have indicated the timeframes they envisage for their completion.

See this speech in context