From the alleged Garda whistleblower smear campaign, to the allegations of abuse in a former foster home in the South East in the ‘Grace’ case, to the human remains found at Tuam Mother and Baby home; the headlines have been dominated of late by news of commissions of investigation and tribunals of inquiry. It is reported that there are currently 14 live commissions of investigation and inquiries on-going in Ireland at present.

In this article, we consider the differences between a commission of investigation and a tribunal of inquiry; which is appropriate in a given set of circumstances and, in the face of harsh criticism of delays and hefty costs, where does the future of the tribunal of inquiry model lie?

The below serves as a high level comparison of the two mechanisms, highlighting the similarities and differences. In essence, the commission of investigation model was introduced to address widespread dissatisfaction with the length of time and cost of historical tribunals of inquiry in Ireland. It was designed to be a speedier and more cost effective method of investigating matters of significant public concern. The legislation governing commissions of investigation also envisages that a tribunal of inquiry may be established to inquire into a matter within a commission’s terms of reference, or within part of those terms of reference. In this way, the Law Reform Commission describes a commission of investigation as a “low key precursor to a tribunal of inquiry”1, with the potential to save time and costs in having completed the preparatory work for the inquiry in advance.

Feature Tribunal of Inquiry Commission of Investigation
Governing legislation The Tribunals of Inquiry (Evidence) Acts 1921 to 2004. The Commissions of Investigation Act 2004, as amended.
Purpose To inquire into a definite matter of urgent public importance. To investigate and report on a matter of significant public concern.
Establishment Executive has inherent power to establish a tribunal of inquiry – usually established by a combination of Government and Oireachtas May be established by the Government following a proposal made by a Minister, with the approval of the Minister for Finance.
Terms of reference Prepared by Government and Oireachtas. Order establishing the commission may authorise the specific Minister to set its terms of reference, or they may be set by the Government
Rules andprocedures Legislation does not prescribe the procedures to be adopted –tribunal may control its own procedures, while observing the constitutional rights of those appearing before it, and those affected by the tribunal’s decisions. Under the 2004 Act, the commission may establish rules and procedures for receiving and recording evidence and for receiving submissions. This power is subject to the need to observe fair procedures.
Powers

Derive from the legislation and inherent power of a tribunal to control its own procedures. Same powers, rights and privileges as the High Court, in respect of enforcing the attendance of witnesses, examining witnesses on oath or affirmation, compelling the production of documents and issuing a request to examine witnesses abroad.

A witness before a tribunal is entitled to the same immunities and privileges as if he were a witness before the High Court.

Tribunal may apply to the High Court to enforce an order of the tribunal that has not been complied with.

Derive from the legislation. Commission has the power to direct any person to attend before it to give evidence and to produce any document in that person’s power or possession. It may direct witnesses to answer questions relevant to the investigation, examine and cross examine a witness on oath or affirmation and direct any person to provide the commission with a list, verified by affidavit, disclosing all documents in that person’s power or possession relating to the matter under investigation. This is subject to the exception of documents over which privilege is claimed.

A witness before a commission is also entitled to the same immunities and privileges as if he were a witness before the High Court.

Commission may apply to the High Court to enforce a direction of the commission that has not been complied with.

Public or private? Tribunals generally sit in public, unless compelling reasons exist for sitting in private. Commissions generally conduct their investigation in private. A witness may, however, request that all or part of his evidence be heard in public and the commission is entitled to grant this request. In addition, if the commission is satisfied that it is desirable in the interests of the investigation and fair procedures to hear all or part of the evidence of a witness in public, it may do so.
Admissibility incriminal proceedings A statement or admission made by a person to a tribunal is not admissible as evidence against that person in any criminal proceedings. A statement or admission made by a person to a commission is not admissibleas evidence against that person in any criminal proceedings.
Offences Legislation provides for a number of offences including failing to attend before the tribunal when summoned, failing to produce a document and wilfully submitting false evidence. The 2004 Act provides for offences including failing to attend before the commission when summoned without reasonable excuse, disclosing or publishing any evidence given in private(save in limited circumstances) and making a statement which the person knows to be false.
Costs Tribunal has jurisdiction to award costs in full or in part or refuse costs to parties appearing before it. It may also direct a party to pay all or part of the costs of another party to the tribunal. Specified Minister must prepare general guidelines concerning the payment of legal costs to witnesses necessarily incurred in connection with a commission. Under the 2004 Act, legalcosts will necessarily be incurred by a witness if their good name or conduct is called into question by evidence received by the commission, or if their personal or property rights are at risk of being jeopardised.

Where does the future lie?

On foot of the Law Reform Commission’s 2005 Report on Public Inquiries , the Tribunals of Inquiry Bill 2005 was published. This Bill aimed to modernise the law relating to tribunals of inquiry by repealing the existing legislation and by providing in one composite piece of legislation for the establishment, powers, suspension and dissolution of a tribunal. It contained provisions which clarify the process for setting and amending the terms of reference of a tribunal, and in particular, to require a tribunal, within three months of its establishment, to produce a statement of estimated costs and duration. The Bill has, however, never been enacted, and has since lapsed. It is not on the legislative programme for 2017.

It is regrettable that the law of tribunals of inquiry has not been updated and modernised. There is undoubtedly a vital public interest in inquiring into significant historical events, to shine a spotlight on past errors and wrongdoing and to ensure that such events to do not recur. This must be balanced with the public interest of ensuring that any investigation or inquiry is carried out in as cost effective and efficient a manner as possible, to restore public confidence in the inquiry model while also ensuring that the tribunal has the resources to carry out its functions effectively.

It remains to be seen whether the 2005 Bill will be restored, or whether new legislation will be introduced in the future to address the shortcomings of the existing system.