Robert Troy (Longford-Westmeath, Fianna Fail) | Oireachtas source

Section 13 provides that the ombudsman may require any person to attend before him and be examined and cross-examined on oath or affirmation. This updates the 2017 FSPO Act to include a provision for cross-examination and also provides for a person to make an affirmation in place of taking an oath. Senators may be aware that many of the amendments in this Bill arise from the Supreme Court ruling in the case of Zalewski v. an adjudication officer, the Workplace Relations Commission, Ireland and the Attorney General. In that ruling, the Supreme Court held that in respect of the exercise of powers by the adjudication officers, pursuant to Part 2 of the Workplace Relations Act 2015 and the administration of justice under Article 34 of the Constitution, the administration of justice in accordance with Article 34 is normally the preserve of the courts. The court also found, however, that the administration of justice as carried out by the adjudication service is permissible within the meaning of Article 37 of the Constitution because the administration of justice is limited.

The proposed amendment seeks to give effect to the Zalewski case. The Supreme Court found that the cross-examination of witnesses for the opposing party is a fundamental element of fair procedures as guaranteed under Article 40.3 of the Constitution. The proposed amendment in section 13 also seeks to ensure that section 47(3)(b) of the principal Act is consistent with the FSPO's oral hearing guidelines and existing practice. The FSPO's current oral hearing guidelines state that witnesses will be required to give evidence under oath affirmation and that each party will be entitled to cross-examine the witnesses. During FINPERT committee public hearings with FSPO officials on 10 May 2023, the then ombudsman indicated that the cross-examination of witnesses had always been a feature of oral hearings before the FSPO. This amendment is simply to clarify the process and underpin it with a legislative basis. I thank the former FINPERT committee for its recommendation on the inclusion of affirmation in addition to oath in the pre-legislative scrutiny report, which is an improvement on the wording set out in the general scheme of the Bill.

My officials tell me that in this instance, it is notable that since mediation was introduced in early 2016 as the primary initial process for resolving complaints, this has led to a reduction in the overall number of oral hearings required. In that context, by way of comparison with the 12 oral hearings scheduled in 2016, there were only three in 2021, four in 2022, one in 2023 and two in 2024. Most of this is resolved by mediation where there is no public display in overt hearings or cross-examinations. This amendment is just arising as a requirement of the Supreme Court ruling in the Zalewski case.