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Consultation Paper on Public Inquiries

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Consultation Paper on Public Inquiries __________ CONSULTATION PAPER ON PUBLIC INQUIRIES INCLUDING TRIBUNALS OF INQUIRY __________ (LRC CP 22 - 2003) IRELAND The Law Reform Commission IPC House, 35-39 Shelbourne Road, Ballsbridge, Dublin 4 © Copyright The Law Reform Commission 2003 First Published March 2003 ISSN 1393 – 3140 ii THE LAW REFORM COMMISSION Background The Law Reform Commission is an independent statutory body whose main aim is to keep the law under review and to make practical proposals for its reform. It was established on 20 October 1975, pursuant to section 3 of the Law Reform Commission Act 1975. The Commission’s Second Programme for Law Reform, prepared in consultation with the Attorney General, was approved by the Government and copies were laid before both Houses of the Oireachtas in December 2000. The Commission also works on matters which are referred to it on occasion by the Attorney General under the terms of the Act. To date the Commission has published sixty nine Reports containing proposals for reform of the law; eleven Working Papers; twenty one Consultation Papers; a number of specialised Papers for limited circulation; An Examination of the Law of Bail; and twenty three Reports in accordance with section 6 of the 1975 Act. A full list of its publications is contained in Appendix D to this Consultation Paper. Membership The Law Reform Commission consists of a President, one full-time Commissioner and three part-time Commissioners. The Commissioners at present are: President The Hon Mr Justice Declan Budd High Court Full-Time Commissioner Patricia T Rickard-Clarke Solicitor Part-Time Commissioner Dr Hilary A Delany, Barrister-at-Law Senior Lecturer in Law, Trinity College Dublin Professor Finbarr McAuley Jean Monnet Professor of European Criminal Justice, University College Dublin Marian Shanley Solicitor Secretary John Quirke iii Research Staff Legal Researchers Simon Barr LLB (Hons), BSc Patricia Brazil LLB Nessa Cahill LLB, LLM (Bruges), Barrister-at- Law Claire Hamilton LLB (Ling Franc), Barrister-at- Law Darren Lehane BCL, LLM (NUI) Claire Morrissey BCL (Int’l), LLM (K U Leuven) Mark O’Riordan BCL, Barrister-at-Law Philip Perrins LLB, LLM (Cantab), of the Middle Temple, Barrister Administration Staff Project Manager Pearse Rayel Legal Information Manager Marina Greer BA, H Dip LIS Cataloguer Eithne Boland BA (Hons) H Dip Ed, H Dip LIS Higher Clerical Officer Denis McKenna Private Secretary to the President Liam Dargan Clerical Officers Gerry Shiel Sharon Kineen Principal Legal Researchers on this Consultation Paper Philip Perrins LLB, LLM (Cantab), of the Middle Temple, Barrister Darren Lehane BCL, LLM (NUI) iv Contact Details Further information can be obtained from: The Secretary The Law Reform Commission IPC House 35-39 Shelbourne Road Ballsbridge Dublin 4 Telephone (01) 637 7600 Fax No (01) 637 7601 Email [email protected] Website www.lawreform.ie v vi ACKNOWLEDGEMENTS The Commission would like to thank Professor David Gwynn Morgan for his invaluable assistance in preparing this Consultation Paper for publication. The Commission would also like to thank the following people, who offered advice and assistance. Full responsibility for this publication, however, lies with the Commission. Rory Brady SC, Attorney-General. Frank Clarke SC. Peter Durnin, Office of the Director of Corporate Enforcement. Jerry Healy SC. Eamonn Kennedy, Director of Legal Affairs, Radio Telefís Éireann. Oonagh McIntosh, Assistant Secretary to the Shipman Inquiry. Bairbre O’Neill, BL, former legal researcher. Morgan Sheehy, BL, Regulatory Law Manager, ESB. Neil Steen, BL, former legal researcher. The Commission also wishes to express its gratitude for the help and assistance it received from many other members of the legal profession, those involved in inquiries, inspections and investigations, particularly the Air Accident Investigation Unit, the Office of the Director of Corporate Enforcement, and a number of Government Departments. vii viii TABLE OF CONTENTS INTRODUCTION................................................................................................... 1 CHAPTER 1 PUBLIC INQUIRIES IN GENERAL....................................... 5 Part I Introduction .................................................................................. 5 Part II Alternatives to Public Inquiries .................................................... 8 Part III Legislation.................................................................................. 11 Part IV Other Reviews in this Field ........................................................ 13 Part V The Advantages and Disadvantages of an Inquiry ..................... 16 Part VI Non-applicability of Article 34.1 of the Constitution................. 19 CHAPTER 2 COMPANY INSPECTORS..................................................... 23 Part I Introduction ................................................................................ 23 Part II The Privilege Against Self-Incrimination................................... 26 (a) Comment .................................................................................... 29 (b) Civil Proceedings........................................................................ 30 Part III Constitutional Justice.................................................................. 31 Part IV Foreign Authorities on Procedure............................................... 35 (a) England....................................................................................... 35 (b) European Court of Human Rights .............................................. 37 (c) Australia ..................................................................................... 38 (d) Comment .................................................................................... 39 Part V Publicity...................................................................................... 39 (a) Private Proceedings .................................................................... 39 (b) Limited Circulation of Inspector’s Report.................................. 41 (c) Omission of Parts of the Report ................................................. 43 CHAPTER 3 COMMISSION TO INQUIRE INTO CHILD ABUSE ........ 45 Part I Introduction ................................................................................ 45 (a) Background ................................................................................ 45 (b) The Confidential Committee ...................................................... 48 (c) The Investigation Committee ..................................................... 49 (d) Procedural Rules of the Two Committees .................................. 49 Part II Inquiry Officers .......................................................................... 50 Part III Deciding Officers ....................................................................... 55 Part IV The Legal Representative of the Survivors’ Interest .................. 56 Part V Investigation Committee Procedure ........................................... 58 (a) Rules and Framework of Procedures.......................................... 58 (b) Phase 1 Hearings ........................................................................ 59 (c) Phase 2 Hearings ........................................................................ 62 Part VI Appointment of Experts ............................................................. 66 ix CHAPTER 4 PARLIAMENTARY INQUIRIES.......................................... 69 Part I Inquiry by Oireachtas Committees ............................................. 70 (a) From the PAC Inquiry into Northern Ireland Relief to the 1997 Act .................................................................................... 70 (b) Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act 1997........... 71 Part II Comptroller and Auditor General and Public Accounts Committee Inquiry into DIRT: A Case Study ......................................... 74 (a) CAG Inquiry............................................................................... 74 (b) PAC Hearings............................................................................. 77 Part III Abbeylara ................................................................................... 77 (a) ‘Adjudicatory’ – Findings of Facts............................................. 79 (b) Holding ‘Non-Office-Holders’ Responsible............................... 81 Part IV Authority to Hold Inquiry........................................................... 83 (a) No Bias....................................................................................... 85 (b) Permissible Oireachtas Inquiries: the Mini – CTC Signalling Inquiry .............................................................................. 86 Part V Recommendations ...................................................................... 88 (a) Would Amending Legislation be Unconstitutional?................... 88 (b) Is New Legislation Necessary for Non-Abbeylara Type Inquiries? .......................................................................................... 90 CHAPTER 5 THE TRIBUNAL OF INQUIRY ............................................ 93 Part I History........................................................................................ 93 Part II Should the Chairperson Always be a Judge?.............................. 97 Part III Tribunals Comprising More Than One Member .......................102 Additional and Reserve members..............................................103
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