Brendan Howlin (Wexford, Labour) | Oireachtas source

I move amendment No. 15:

In page 42, between lines 15 and 16, to insert the following: “(3) Where a person fails or refuses to comply with, or disobeys, a summons to attend or other direction under subsection (1), the High Court may, on application by the appointed judge concerned and on notice to the person—

(a) order the person to comply with the direction or, in the case of a summons, to attend before the appointed judge, and

(b) make such other order (if any) as it considers necessary and just to enable the direction to have full effect or, in the case of a summons, to ensure the attendance before the appointed judge.

(4) A person who—

(a) on being summoned to attend before an appointed judge for the purpose of an inquiry under section 31(3)(a), fails to attend,

(b) in attendance as a witness for such a purpose—

(i) refuses to take an oath lawfully required by the appointed judge to be taken,

(ii) refuses to produce any document in his or her power or control lawfully required by the appointed judge to be produced by him or her,

(iii) refuses to answer any question to which the appointed judge may lawfully require an answer, or

(iv) does anything which, if the appointed judge were a judge of the High Court hearing an action, would be contempt of that court,

is guilty of an offence and is liable on summary conviction to a class C fine or to imprisonment for a term not exceeding 6 months, or both.”.

This pertains to inquiries under section 31(3)(a), which, in essence, relates to the removal of a Garda Commissioner. It is an inquiry that would be chaired by a High Court judge. The amendment we table here is to provide for a procedure where a person refuses to co-operate with such an inquiry under this section. The then Minister's presentation, as I understood it, was that because the person conducting the inquiry is a judge of the High Court, he or she will have ample powers to deal with non-co-operation, including powers to commit for a contempt of court.

I am advised - I am not a lawyer, but I am surrounded by them - that a judge has the power to commit for a contempt of court where the judge is sitting in a court of law. A judge cannot exercise such powers when he or she is not sitting in a court of law, for example, when chairing a tribunal of inquiry or sitting in any other capacity. There is nothing in section 32 to suggest that an inquiry under this section is a judicial proceeding. I do not expect the Minister believes it is a judicial proceeding carried out by and in a court of law. In that case, my advice is that the judge conducting such an inquiry will not have the contempt of court powers and, should a witness not co-operate by presenting himself or herself or producing documents, there would be no remedial powers available to the chairperson, who happens to be a High Court judge, to deal with such non-compliance. It is to remedy this that we are replicating sections already in the Bill in respect of other circumstances. I ask the Minister to address this issue. How does she envisage that the chairperson of an inquiry under section 31(3)(a) will deal with non-co-operation without having the powers of contempt that she believes are available to a judge sitting in that capacity?

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