Brian Lenihan Jnr (Dublin West, Fianna Fail)

I am pleased to present to the House the Commissions of Investigation Bill 2003. The Bill provides for the establishment of commissions of investigation. The function of a commission of investigation will be to investigate into and establish the facts about matters of significant public concern referred to it for investigation and to make a report on its investigation.

The House will be aware that the Bill has its origins in the need to provide a means for investigation into the child sex abuse scandals in the Catholic Church. It is generally accepted that the public and sometimes adversarial nature of tribunals of inquiry does not lend itself to investigation of matters of such a sensitive and intensely personal nature. Nonetheless, such inquiries need to have at their disposal powers which are no less vigorous and effective in the pursuit of answers to difficult questions. Separate to this, the Government recognised the need to devise a new form and method of investigation.

The Bill adds in a significant way to the range of mechanisms available for investigations. As Members will note, the Bill contains several new features that will ensure more timely and cost effective investigations without in any way compromising or encroaching on the proper conduct of an investigation. These features will instead enhance the ability of a commission of investigation to meet its objective of establishing the facts about any matter referred to a commission. The interests of justice and accountability will be advanced by a speedy conclusion to an investigation.

Before dealing with the detail of the Bill's provisions, it is important to have a clear picture of what the Bill does not do. This legislation does not replace or amend in any way the legislation under which tribunals of inquiry are established and operated. Commissions may be regarded as precursors to, or alternatives to, tribunals but the Bill makes no change to legislation relating to tribunals. It is also important to note that the Bill does not establish a single or permanent investigations body. It enables the establishment of commissions as and when required. Several commissions may sit at any one time investigating into several and varied situations. In other words, this Bill gives the State a very flexible investigative mechanism.

Several of the new departures and innovative approaches to be found in the Bill are particularly important and worthy of emphasis. I draw the attention of the House to aspects of the Bill which relate to the terms of reference of a commission and to the guiding principles that aim to encourage co-operation. I will explain the way a commission will conduct its investigations and the strong powers available to it and will outline the provisions designed to ensure time limits are respected and costs are kept under control. Finally, I will underline the importance of the reports of commissions. Given these features, I hope Senators will agree that the Bill introduces a timely and effective additional mechanism to ensure accountability and transparency in our public affairs.

The first and most basic question is when and in what circumstances we envisage commissions being established. The Bill provides that a commission will be established on foot of a Government order approved by the Oireachtas. The subject matter must be, in the words of the Bill, an issue giving rise to significant public concern. An issue giving rise to significant public concern is one of more than mere passing interest to the public. It must instead be an issue that has serious, including long-term, implications for public life. Those implications could include the welfare and safety of a sector in society or the effective and safe operation of a significant public service.

While the Bill provides the mechanism and structure for the operation of investigations, it will remain the function of the Government of the day and the Oireachtas, as the representatives of society at large and as guardians of the public interest, to make the judgment in any particular case as to whether an issue is of such significant public concern that it requires investigation by a commission.

I will now deal with the terms of reference of a commission. It is recognised that clear and well defined terms of reference, which are tightly drawn, are often the key to a successful investigation. The Bill addresses this issue directly in sections 4 and 5. The process leading to the establishment of a commission starts with the presentation to the Oireachtas of a reasoned statement of the need to establish a commission, along with the draft establishment order. Following the approval of the order by the Oireachtas, the terms of reference are to be set by the Government or the Minister having overall responsibility for the commission in question. There may be consultations with interested parties about the terms of reference but the terms must, in the final analysis, comply with the detailed parameters in section 5.

Section 5 sets out very specific matters to be considered in setting the terms of reference. Observance of these criteria will result in tight and well defined terms of reference. Section 5 also requires that the terms of reference must be accompanied by statements setting out the likely duration and cost of an investigation. The terms of reference and the accompanying statements on costs and duration will be published.

Section 6 recognises that the terms of reference may need to be altered on occasions. It states that any amendment must be for clear purposes, namely to clarify, extend or limit the scope of an investigation. The statements of costs and timeframes must be amended when the terms are altered. This will ensure that the full implications of any alteration are clear to everyone. It is worth noting that amendments may be made only if the commission consents to them. It may withhold consent if it is satisfied that the amendment would prejudice the legal rights of any person who has co-operated with or provided information to the commission.

The Minister is satisfied that the overall effect of these important sections is that this legislation is ensuring that the difficulties that have come to beset other investigations and inquiries are met and addressed at the outset. Therefore, the scope for surprises at a later stage should be considerably reduced.

In keeping with the general aim of the Bill, section 7 adopts a flexible approach to determining the membership of commissions. Under the terms of the section, we will be able to draw on a wide range of skills and expertise. We will be able to achieve the right mix of such skills and expertise. The experience and qualifications of the members can be supplemented by experts who can be recruited under section 8 to assist and advise the commission. The Minister hopes to ensure that all investigations, regardless of their subject matter, will be carried out by, those most qualified to do so. He considers that sections 7 and 8 will ensure that is the case. Section 9 requires that a commission must be independent in the discharge of its functions.

Section 10 sets out the guiding principles by, which commissions must operate. Commissions will be required to seek the voluntary co-operation of witnesses. The Bill places a responsibility on commissions to facilitate witnesses in that respect. Given the multitude of circumstances in which commissions may operate, it is not possible to say how and in what manner commissions will meet that responsibility. One can envisage that, for example, they will be prepared to hear evidence in locations and at times that are more convenient for witnesses. Subject to certain safeguards, they may accept evidence in forms other than in person. For example, evidence may be accepted by live or pre-recorded video links or by affidavit.

Section 11, which provides that, in general, evidence will be given to commissions in private, complements section 10. It will support commissions in adhering to the guiding principles I have mentioned. The arrangements set out in section 11 will result in a less adversarial atmosphere. It is hoped that such an atmosphere will encourage witnesses who might be intimidated by the prospect of lengthy and detailed cross examination, for example, to come forward to assist the commission. Section 11 provides that legal representatives of other parties will be present only if the commission is satisfied that their presence is necessary in the interests of the investigation and fair procedures. Similarly, cross-examination by or on behalf of other parties will take place only if the commission agrees. The commission may, however, question a witness on the evidence he or she has given.

I recognise that the procedures in section 11 represent a departure from current practice in certain respects. The Minister argues that the new approach is designed to assist commissions in their primary task of establishing facts, while ensuring that procedures are fair. As hearings will be in private, generally speaking, the risk of damage to the good name or reputation of another is greatly reduced, as is the need for legal representation. Private hearings have the advantage of avoiding the difficulties, which arise when claims are publicly made, by one party but remain unanswered for a considerable time until the affected person comes to give evidence. In such circumstances, there is a risk that unfounded or inaccurate claims can appear to go unchallenged and the good name and reputation of certain persons can be gravely and unjustly damaged. The new approach should reduce that risk.

It is important to ensure that private hearings are not abused in a way that would allow unfounded allegations and claims to be made or to go unchallenged. Section 12 addresses this concern by providing that a commission should inform any person who may be the subject of such claims or allegations of those claims or allegations. It provides that such persons should be given an opportunity to deal with them. While no obligation is being placed on a commission to reveal the source of any evidence given to it, such details should be disclosed on certain occasions.

Section 15 requires a commission to establish or adopt rules and procedures pertaining to its operation. If a commission has several members, such rules may authorise the taking of evidence by one or more of them. The section provides that evidence given in such circumstances will be regarded as having been given to the commission. This is an important measure that could help to speed up investigations and to save time and cost.

I would like to discuss the powers the Bill gives to commissions of investigation. While voluntary co-operation is the legislation's central plank, commissions will be in a position to pursue investigations with vigour if co-operation is not forthcoming. Sections 16 and 28 of the Bill, in particular, provide effective powers to deal with a failure to co-operate. Section 16 specifies the powers that will be available to commissions in respect of witnesses. They will have the power to direct witnesses to attend, to answer questions and to produce and disclose documents. Section 28 provides for powers relating to entry into premises, inspecting and securing documents, taking copies of documents and requiring persons in charge of documents or related equipment to co-operate with the commission. All witnesses appearing before a commission will be made aware that in the absence of co-operation, the commission may have recourse to the powers available to it under these sections.

I draw attention to section 2(2), which provides useful clarification of who has control over documents, especially in large organisations. It states that in the final analysis, the person who can reasonably be considered to have control is deemed to have control, unless there is evidence to the contrary. This closes a potential loophole that could be open to abuse.

The Bill creates several offences — failure to comply with directions, giving false statements and obstruction. The offences carry fines on summary conviction of up to €3,000, or a term of imprisonment of up to 12 months. On indictment, the offences will be punished by fines of up to €300,000 or imprisonment of five years. Corporate bodies may be prosecuted for offences under the Bill in the normal way. If a person does not comply with a direction to attend or produce documentation, a commission may apply to the High Court for an order seeking compliance. The failure to comply with such an order raises the issue of contempt of court.

The powers I have mentioned are necessary for the effective functioning of commissions. The Minister recognises that the powers are significant. For that reason, section 27 sets out the principles governing the use of the powers of entry and search under section 28, for example. The powers may be used if it is felt that it is reasonable and necessary to do so in the interests of the investigation. Nothing in the Bill prevents anyone who is the subject of a direction from a commission under sections 16 or 28 from seeking a review of the direction in the High Court.

I draw attention to section 21 in the context of a commission's powers and operating procedures. The section sets out how a commission may deal with circumstances in which privilege is claimed in respect of information sought by it. The purpose of this measure is to find an effective but proportionate way of overcoming difficulties presented by claims of privilege. Such claims can seriously frustrate and delay the work of an investigation, especially if there is no justification for them. The mechanism proposed in section 21 ensures that genuine claims will be respected, while ensuring that the necessary information will be made available to a commission.

I wish to discuss the control and management of costs, issues which arise under three headings. At the beginning of any investigation, costs will be incurred by the commission. As I noted earlier, the terms of reference must be accompanied by, a statement of the costs that are likely to be incurred by a commission. The statement is to be revised if the terms are altered. The costs covered by the statement will include the costs of staff appointed to advise and assist the commission, in accordance with section 8. Such staff may include barristers and solicitors. Section 8 provides that a competitive tendering process may be used for the recruitment of staff under the section, where it is appropriate to do so.

Costs can also arise when witnesses seek to have their costs recouped from the Minister. Although the legislation deals mainly with the repayment of legal costs, it makes some provision for non-legal costs. Travel costs and other expenses may be reimbursed under section 16(3), for example.

Section 23 provides for guidelines to be prepared by the relevant Minister in respect of witnesses' legal costs. The guidelines will be drawn up in consultation with the Minister for Finance, in advance of the commission's hearings. They will set out the legal costs, which will be regarded as being "necessarily incurred" by witnesses in connection with the investigation. Such expenses are the only legal expenses a witness can expect to have recouped. Legal costs will be necessarily incurred when the good name of a witness is called into question, or when other personal or property rights are at risk of being jeopardised as a result of evidence received by the commission. The guidelines prepared under section 23 may restrict the types of legal services or fees to be recouped and may set limits on the level of legal costs to be paid. Witnesses will be given a copy of the guidelines before they give evidence. This ensures that witnesses who wish to do so can arrange legal representation with full knowledge of the regime under which they may seek to have the costs recouped.

A commission is obliged, in accordance with section 13(2), to advise witnesses of their legal rights and obligations when they are not legally represented for whatever reason. Even if a commission considers that legal representation is not necessary to the extent that it will approve the recoupment of costs and the witness does not therefore acquire legal representation, it will seek to ensure that the witness is fully aware of his or her legal rights and duties.

The section 23 guidelines do not automatically guarantee that all or any of a witnesse's legal costs will be met. Each situation will be considered on its merits, having regard to the criteria set out in section 24. In particular, all applications will be subject to the criteria in section 24(3), which sets out a non-exhaustive list of issues to be considered by the commission. The section enables a commission to take account of the level of co-operation provided by the witness, among other things. Having considered an application, a commission may give a direction to the relevant Minister to pay costs at a level that does not exceed the maximum level set in the guidelines. The recommended level may be lower than in the guidelines. The Minister may pay the costs as directed by the commission, or refer the matter back to the commission for reconsideration, after which the commission may reduce the proposed level of payment or confirm its original determination. The Minister shall then pay the witness the costs recommended by the commission.

A person may be held liable, due to obstruction or a lack of co-operation, for additional costs incurred by other parties, such as the commission or other witnesses. Section 17 provides that if a witness is held to have failed to co-operate or obstructed a commission, and the commission or other witnesses have incurred additional costs as a result, the party who causes the delay or obstruction may be held liable for the additional costs. Liability for the costs of a commission or other witnesses may be imposed on persons in addition to that person being proceeded against for the offence of obstruction. In other words, it should be understood that obstruction is likely to have serious consequences.

Section 24(5) makes a limited exception to the general regime on costs. This will occur where a witness incurs exceptional costs other than legal costs because of the volume or location of documents, for example, documents held outside the State. In those circumstances, the commission may direct that such exceptional costs may be repaid to the witness and, as in the case of legal costs, the relevant Minister may request the commission to reconsider any direction about the repayment of such costs.

I have been anxious to spell out to Senators in some detail the provisions relating to costs, in particular legal costs. To summarise, in addressing the question of legal costs, the Bill takes account of the overall structure being put in place, including the level of risk to the good name and reputation of any witness because, as I expect, private hearings will be the norm. It is reasonable to say that the lower level of risk to the good name and reputation of any witness should be reflected in a reduced need for legal representation. On the other hand, the Bill ensures costs that are necessarily incurred — that is the critical phrase — in the protection of a person's good name and reputation will be recouped. The Bill sets out to achieve a balance between the wider public interest to control costs and the protection of the rights of individuals to their good name, and these proposals achieve that balance.

Part 5 of the Bill deals with reports and interim reports of a commission. Section 32 provides not only that a commission must prepare for the relevant Minister a written report based on the evidence received by it but also identify the precise purpose of the report. It must set out the facts it has established in regard to the matter referred to it. It is not the function of a commission to speculate, make findings or come to judgements based on, for example, the balance of the evidence. However, by virtue of having become a matter requiring the establishment of a commission of investigation, there is likely to be dispute about some or all aspects of the evidence.

Again, there is a balance to be achieved here. It would be unreasonable to expect a commission to merely set out the conflicting evidence and offer no comment even where a certain comment would be justified by the clear weight and quality of some or all of that evidence. Such an approach would undermine the credibility of a commission as it alone would be unable to draw conclusions that would seem obvious to all other observers. Section 32(2) therefore enables a commission to indicate its opinion as to the quality or weight of evidence relating to any area where the evidence is incomplete, insufficient, inconsistent or disputed. This does not go so far as to say that a commission may favour or find that one version of the evidence is more credible than another. It does permit a commission to point out that, for example, certain disputed facts are supported by corroboration from other sources or that a clear majority of witnesses affected by a particular event support one version as opposed to another. Statements of this kind merely summarise where the weight of the evidence lies and they are, to that extent, merely stating what is obvious to all.

I want to draw attention to some aspects of the Bill as they relate to the possible identification of persons in reports compiled by a commission. There is no general restriction in the Bill on the identification of persons in reports of a commission. However, section 32(3) sets out considerations that may lead to the omission of certain details from a report identifying persons who gave evidence or any other person.

Sections 34, 35 and 36 contain provisions providing an opportunity to persons identified in or identifiable from a draft report to submit comments thereon to the commission on the grounds that there has been a failure to observe fair procedures or in order to protect commercially sensitive information. A commission is required to give due consideration to requests for alterations. It may either amend the report, apply to the High Court for directions or submit the report to the relevant Minister without alteration. In the alternative, a person identified in or identifiable from a draft report may bring the matter before the High Court seeking an order from the court directing that the draft be amended before submission to the relevant Minister. The court may either order the commission to submit the report without alteration, or with such alterations as it may direct, or give a direction to the commission to provide an opportunity to the person to give evidence or make submissions to the commission before the report is finalised. Either way, no one will be allowed to delay publication indefinitely. There will be time limits for making submissions to the commission or applications to the court. Giving affected persons an opportunity to comment and have their views considered will meet the requirements of natural justice. The commitment to fair procedures will reduce the likelihood of court challenges to a commission's work and supports the objective of efficient and effective investigations.

The final decision on the publication of a report or interim report rests with the relevant Minister. He or she may seek directions from the High Court where there is a risk that anything in the report or interim report could prejudice any pending or ongoing criminal proceedings. This is a useful final check. The Bill does not contemplate any other reason for delaying or withholding publication.

Section 42 confers absolute privilege on reports and interim reports as well as on other documentation of a commission, where published.

It is likely that in many cases commissions will find themselves grappling with the difficulties of disputed evidence. As a result, it may transpire that in some instances a commission may be unable to establish or present the full facts in respect of some or all of the matters about which it has carried out an investigation. The Bill, therefore, leaves open the possibility of a tribunal of inquiry being established under the Tribunals of Inquiry (Evidence) Acts 1921 to 2004 for the purposes of inquiring further into the matter. It is my view that it will be the exception to have to establish a tribunal as a follow-up to a commission. Neither will the establishment of a tribunal in such circumstances represent a failure on the part of the commission. On the contrary, it will have carried out invaluable preparatory work on behalf of any subsequent tribunal, thus saving time and cost, apart from the quality and volume of the evidence it will have amassed.

Section 45 provides that in the event of a tribunal being established, all of that evidence becomes evidence of the tribunal. Care must be taken, however, to ensure that information excluded from a commission's report under section 32(3) is not made public as a result of the transfer of the evidence received by the commission to the subsequent tribunal. Section 46 provides a mechanism for dealing with such information. It provides that the affected person is to be informed of any intention to disclose details that were previously excluded and that they have a right to make observations. Ultimately, the High Court may have to consider all such matters.

I turn now to the question of what a tribunal can be expected to achieve that the commission has been unable to do. A commission is required to establish facts and may comment beyond that only to the limited extent that I have referred to. This limited brief is required if we are to have a mechanism that reduces the adversarial content of existing fora and places less reliance on cross-examinations and other features that add to cost and delay. A tribunal hears arguments in public and, unlike what we generally expect to be the case with commissions, permits cross-examinations. It can then come to conclusions based on the balance of the evidence available to it. In other words, it is able to make judgments about the balance of evidence in a way that we do not foresee for commissions of investigation.

As I have already stated, I would expect that only in the rarest of cases will there be a need to establish a tribunal following the conclusion by a commission of its work. A decision on whether to propose the establishment of a tribunal will, in the first instance, be a decision by the Government of the day and the proposal must then be submitted to the Oireachtas for its approval. It may be that the Government would decide that even where the commission's investigation is not as complete as would have been hoped, enough evidence will have been collected by it. The Government would then be in the position to proceed with the matter another way, for example, by legislative or administrative action.

The Minister believes this reforming legislation provides an efficient and effective alternative to the State for the purposes of investigating matters of significant public concern. It draws on our experiences to date with other methods of investigation. It is a Bill that arises from recognition of the complexities of modern government and public administration. The opportunities for systemsto fail are ever greater and the consequences of such failures have far-reaching effects, both for the individuals, their reputations and the country at large. It is important that we provide ourselves with a mechanism for responding to such failures that is responsive, sensitive and fair while at the same time effective and efficient. To meet these standards it must be speedy and cost effective. In that way it can command public respect and confidence. It will be seen as the ideal way of dealing with complex circumstances while fully respecting fair procedures and natural justice. This Bill meets those criteria and I am happy to commend it to Seanad Éireann.