Public Inquiries Including Tribunals Of Inquiry, Report on (LRC 73-2005) [2005] IELRC 73(4) (May 2005)

BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just Â£1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!

[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

Irish Law Reform Commission Papers and Reports

You are here: BAILII >> Databases >> Irish Law Reform Commission Papers and Reports >> Public Inquiries Including Tribunals Of Inquiry, Report on (LRC 73-2005) [2005] IELRC 73(4) (May 2005)
URL: http://www.bailii.org/ie/other/IELRC/2005/3(4).html
Cite as: [2005] IELRC 73(4)

[New search] [Help]

START OF PAGE 47

CHAPTER 4 MEMBERSHIP

A Introduction

4.01 This chapter discusses the appointment of persons to tribunals of inquiry, either as sole members, chairpersons, ordinary members, assessors or experts, and makes relevant proposals for reform.

B Membership

4.02 The Commission begins by considering who should be responsible for the appointment of the members of tribunals of inquiry, and secondly what qualifications should be required for appointment and thirdly whether there should be a statutory requirement of independence.

(1) Responsibility for Appointment

4.03 The Tribunals of Inquiry (Evidence) (Amendment) Act 1979 deals with the membership of the tribunals of inquiry. Section 2(1) provides that a tribunal may consist of more than one person sitting with or without assessors.^[1] Section 2(3), as inserted by the Tribunals of Inquiry (Evidence)(Amendment) Act 2002, provides that additional members may be appointed during the course of the tribunal.^[2]

4.04 However, the legislation does not specify who is responsible for the appointment of members to a tribunal of inquiry. The present position is that the Government appoints the members of tribunals of inquiry.

START OF PAGE 48

(a) Commissions of Investigation Act 2004

4.05 The Commissions of Investigation Act 2004 provides that the members of inquiries established under that Act are to be appointed by the specified Minister or by the Government, where there is no specified Minister.^[3]

(b) United Kingdom

4.06 Section 4 of the UK Inquiries Act 2005 provides as follows: "(1) Each member of an inquiry panel is to be appointed by the Minister by an instrument in writing.

(2) The instrument appointing the chairman must state that the inquiry is to be held under this Act.

(3) Before appointing a member of an inquiry panel (otherwise than as chairman) the Minister must consult the person he has appointed or proposes to appoint, as chairman."

(c) Canada

4.07 In Canada, the Executive makes appointments to both Federal and Provincial Inquiries.^[4]

(d) New Zealand

4.08 In New Zealand, the Executive makes appointments to inquiries. The selection of Commissioners is the prerogative of Ministers, who take advice from relevant government departments

START OF PAGE 49

and the Solicitor-General, especially in regard to the need for a judge as Chair.^[5]

(e) Australia

4.09 In Australia, the Executive makes appointments to both Federal and State inquiries.^[6]

(f) Recommendation

4.10 Three options present themselves concerning the responsibility for the appointment of members of a tribunal of inquiry. The first is that they continue to be appointed by the Government. The second is that they should be appointed by, or their appointment should be subject to the approval, of the Oireachtas. The third is that they should be appointed by an independent body akin to the Top Level Appointments Commission, or the Judicial Appointments Commission.

4.11 The Commission considers that given the fact that tribunals may be established to inquire into a wide variety of circumstances, the Government is best placed to consider the suitability or otherwise of potential appointees.

4.12 The Commission considers that it would be inappropriate for the Oireachtas to debate or adjudicate on the suitability or otherwise of potential appointees particularly where those individuals are members of the judiciary.

4.13 The Commission also considers that a mechanism whereby the appointment would be made by an independent commission would be inappropriate for a number of reasons. First, because tribunals are established on an ad hoc and infrequent basis, it would be wasteful of resources to create a body specifically to consider candidates or appointment. Second, if such a commission were created, or the responsibility given to another body, such as the Top Level Appointments Commission, applicants would have to apply to that body to be members of the panel, and that might be inappropriate

START OF PAGE 50

particularly where the potential appointees are members of the Judiciary.

4.14 In addition, the Commission is particularly conscious that tribunals of inquiry are established to inquire into definite matters of urgent public importance. The requirement of urgency would militate against a lengthy appointment or approval process. This is reinforced by the fact that the Tribunal would, under the Commission's recommendations, be responsible for the drafting of the terms of reference, which must be approved by both Houses of the Oireachtas before the inquiry may commence its inquiry.

4.15 The Commission recommends that the tribunals of inquiry legislation be amended to confer an express power to appoint members of the tribunal on the Government.

(2) Qualifications for Appointment

4.16 The Commission will now consider the qualifications for appointment to the inquiry panel, in particular the question of whether the appointees should be members of the judiciary.

(a) The Tribunals of Inquiry (Evidence) Acts 1921 to 2004

4.17 The present position is that the Tribunals of Inquiry (Evidence) Acts 1921 to 2004 do not lay down any guidelines as to what the qualifications for appointment should be. Accordingly, the decision as to qualifications is taken by the body responsible for appointing the members, namely the Government.

(b) Practice to Date

4.18 As the Consultation Paper pointed out it has generally been the practice (particularly in recent years) that judges are appointed to chair, or be sole members of, tribunals of inquiry. This has not however been an invariable practice, particularly in relation to those tribunals which dealt with policy areas. Nonetheless, in recent years a convention has applied that judges (whether sitting or retired) are appointed to chair or be the panel members of, a tribunal of inquiry.

(c) Consultation Paper Recommendation

4.19 The Commission in the Consultation Paper recommended that, in light of the plethora of legal issues which can arise before a tribunal of inquiry, it would be prudent to appoint a judge or other

START OF PAGE 51

eminent lawyer as chairperson.^[7] The Commission stated that on the rare occasions where it is considered necessary to appoint a multi member inquiry, the panel should be composed of as many members, from as many backgrounds, as is considered appropriate having regard to the subject matter of the inquiry.^[8]

(d) Discussion

(I) Commissions of Investigation Act 2004

4.20 The Commissions of Investigation Act 2004 requires that appointees should be persons who, having regard to the subject matter of the investigation, have the appropriate experience, qualifications, training or expertise.^[9] (II) United Kingdom

4.21 Section 8 of the UK Inquiries Act 2005 provides that in appointing a member of the inquiry panel, the Minister must have regard (a) to the need to ensure that the inquiry panel has the necessary expertise to undertake the inquiry; and (b) in the case of an inquiry panel consisting of a chairman and one or more other members, to the need for balance in the composition of the panel.

4.22 Section 9 of the UK 2005 Act provides that the Minister may not appoint a person if that person has (a) a direct interest in the matter under investigation, or (b) a close association with an interested party unless the Minister takes the view that this association would be unlikely to influence the proposed appointee's decisions.^[10]

START OF PAGE 52

4.23 Section 10 deals with the appointment of members of the judiciary to the inquiry panel. It provides that if the Minister proposes to appoint a judge, he or she must first consult with the senior judge of the court of which the proposed appointee is a member. (III) Canada

4.24 Neither Federal nor Provincial inquiries legislation lays down any criteria for the appointment of members to public inquiries. It is therefore open to those appointing commissioners to appoint either judges or laypersons. Section 56 of the Judges Act 1985 deals with the appointment of judges to commissions of inquiry. It provides that a judge may not serve on a Commission of Inquiry unless the matter is authorised by the Governor-in-Council, or the Lieutenant General.

4.25 The Canadian Judicial Council issued a position paper regarding the appointment of Federally Appointed Judges to commissions of inquiry which stated that:

• "A request to appoint a judge should first be addressed to the senior judge of the court to which the appointee belongs;

• This request should be accompanied by a statement setting out the proposed terms of reference for the inquiry and an indication as to the time limit, if any, to be imposed on the work of the commission.

• The senior judge and the potential appointee should consider whether:

o The absence of the judge for these purposes would significantly impair the work of the court;

o The acceptance of the appointment to the commission of inquiry could impair the future work of the judge as a member of the court. In this respect they may consider:

?? Does the subject-matter of the inquiry either essentially require advice on public policy or involve issues of an essentially partisan nature?

START OF PAGE 53

?? Does it essentially involve an investigation into the conduct of agencies of the appointing government?

?? Is the inquiry essentially an investigation of whether particular individuals have committed a crime or a civil wrong?

?? Who is to select commission counsel and staff?

?? Is the proposed judge through particular knowledge or experience specially required for this inquiry? Or would a retired judge or a supernumerary judge be as suitable?

?? If the inquiry requires a legally trained commissioner, should the court feel obliged to provide a judge or could a senior lawyer perform this function equally well? If the senior judge and the potential appointee take the view that the appointment would impair the future work of the judge, then the appointment should be declined."^[11]

(IV) New Zealand

4.26 The Commissions of Inquiry Act 1908 does not lay down any guidelines as to what qualifications are necessary for appointment to an inquiry established under the Act. However, historically, commissions of inquiry have been chaired by members of the judiciary.^[12]

4.27 The Council of Chief Justices of Australia and New Zealand recently considered the appointment of members of the judiciary.^[13] They were concerned that the policy of appointing members of the judiciary to public inquiries might compromise the independence and

START OF PAGE 54

integrity of the judiciary. Accordingly, they recommended that before a judge is appointed to a public inquiry, the Executive must consult with the head of the Court of which he is a member.

4.28 In its Guidelines on Commissions of Inquiry, the Department of Internal Affairs state that appointing Commissioners of the right calibre is vital to the success of an inquiry. It stated that where legal issues are likely to be involved, members of the judiciary should be appointed. However, it also recognised the value of appointing laypeople where the circumstances of the inquiry required it.^[14]

(e) Recommendation

4.29 Having surveyed the practice relating to the appointment of members to tribunals of inquiry in Ireland and a number of common law jurisdictions, the Commission turns to consider the appropriate manner in which this would be dealt with in reformed tribunals of inquiry legislation.

4.30 In relation to the question of whether the chairperson should be a lawyer, it could be argued that this is not required as the type of person appointed to an inquiry should depend on the nature of the inquiry. The Commission is aware that there are many types of public inquiry in existence which are not chaired by or composed of lawyers. When legal advice is required by such inquiries, it is sought and having received the advice the inquiry proceeds. ^[15]

4.31 However, it could be argued that tribunals of inquiry are a very different type of investigation from these two types of inquiry First, the subject matter of tribunals of inquiry is generally more voluminous and diverse than other types of public inquiry. Secondly, a tribunal is likely to sit in public so the chairperson should be someone with experience in public hearings. Thirdly, the risk of injury to reputation inherent in many tribunals of inquiry means that parties appearing before them will often be entitled to a number of constitutional rights. Fourthly, the chairperson will often be required

START OF PAGE 55

to give rulings, for example to interpret the inquiry's terms of reference, a decision that may have significant legal consequences. Sixthly, the Tribunals of Inquiry (Evidence) Acts 1921 to 2004 invest inquiries pursuant to that legislation with many of the powers, privileges and immunities of the High Court. Accordingly, it would seem logical that the chairperson, who is ultimately responsible for the exercise of these powers, privileges and immunities, should be someone familiar with the operation of the legal system.

4.32 Having decided that the chairperson or sole member of a tribunal of inquiry should in the majority of cases be a lawyer the question arises whether that lawyer need be a judge. In other words, would a senior counsel, solicitor or legal academic fulfil this role just as well.

4.33 The arguments in favour of appointing members of the judiciary may be summarised as follows.^[16] First, members of the judiciary enjoy a reputation for independence and integrity and this is a vital quality for those charged with investigating what may be politically sensitive issues. Secondly, the judiciary has a great deal of experience in analysing evidence, determining facts and reaching conclusions, prerequisite abilities for anyone chairing a tribunal of inquiry. Thirdly, the judiciary has experience in providing a detailed account of the reasoning behind their decisions, a quality which may prove of assistance to the courts if those decisions are the subject of judicial review proceedings. Fourthly, since the Tribunals of Inquiry (Evidence) Acts 1921-2004 invest tribunals of inquiry with many of the powers, privileges and immunities of the courts, it makes sense to appoint a member of the judiciary.^[17]

START OF PAGE 56

4.34 As against this, a number of arguments may be made against appointing judges, serving or retired, to chair inquiries. First, appointing serving judges to chair such inquiries reduces the number of judges available to do judicial work. Secondly, although it is accepted that the appointment of judges as chairpersons of inquiries is not unconstitutional, it could be argued that while it is within the letter of the law it is outside the spirit of the law, insofar as judges appointed under the constitution should fulfil the tasks required of them under the Constitution, namely to administer justice. Thirdly, it could be argued that by appointing judges to chair inquiries, the Government runs the risk of tarnishing their reputations for integrity and independence, often one of the reasons they were appointed in the first place.^[18] Fourthly, it could be argued that appointing judges, serving or retired, to chair inquisitorial inquiries is inappropriate because their background is adversarial as opposed to inquisitorial. Fifthly, it could be argued that the appointment of judges as chairpersons makes it more difficult for the public to distinguish between the inquisitorial inquiry process and the adversarial judicial process. Sixthly, it could be argued that appointing a serving judge as chairperson of an inquiry is unfair on the individual concerned insofar as if the final report is heavily criticised, the judge by virtue of his or her position will not be able to defend himself or herself in the media.

4.35 While there are strong arguments on both sides of this issue, the Commission has ultimately concluded that the Chairperson or Sole Member of a tribunal of inquiry should in most cases be a member of the judiciary. The following reasons lie behind this conclusion.

START OF PAGE 57

4.36 The Commission considers that the argument that appointing judges to tribunals reduces the numbers available to carry out normal judicial duties is one which can be remedied. Three solutions are available, first, that only retired judges be appointed, secondly that a provision similar to section 14 of the Law Reform Commission Act 1975 (which allows for the appointment of an extra High Court or Supreme Court Judge when a member of those courts is appointed to the Commission) be inserted into the tribunals of inquiry legislation or thirdly, that a provision be inserted requiring the consent of the President of the court of which the proposed appointee is a member. In relation to the argument that appointing serving judges to tribunals is outside the spirit of the Constitution in that they were appointed to administer justice not to chair inquiries, the Commission takes the view that judges are appointed to bring the same judicial qualities to bear in their involvement with tribunals as they do in the course of their judicial duties. Similarly, the Commission considers that any perception that the independence of the judiciary could be tarnished through their involvement with tribunals can be catered for through the requirement for consent from the senior judge of the court of the proposed appointee.

4.37 The fourth and fifth arguments against the appointment of judges to tribunals, namely that it makes it more difficult for the public to distinguish between the inquisitorial nature of the tribunal and the adversarial nature of the courts, is perhaps the most telling. However, the Commission considers that it is an argument which could be levelled at any inquiry presided over by a lawyer. The Commission has concluded that this can be mitigated by clear explanations and directions on behalf of the chairperson of the inquiry. In relation to the sixth point, the fact that judges through their involvement with tribunals may be criticised in the media, a criticism that because of their position they are unable to answer back, the Commission agrees that this can give rise to problems but in an ever increasing age of media comment this is not confined to comment on the work of tribunals of inquiry alone.

4.38 In addition, this recommendation should be read in conjunction with the Commission's recommendations that tribunals of inquiry only be set up after careful consideration.

START OF PAGE 58

4.39 The Commission recommends that where the inquiry is likely to involve legal issues, the Chairperson should be a member of the judiciary. However, the Commission does not recommend that this should be expressed in legislation as there may be circumstances in which, having regard to the subject matter of the inquiry, it is more appropriate that the chairperson be someone with expertise in the area under investigation. The Commission therefore concludes that the Government should be free to appoint laypersons as ordinary members of the tribunal.

4.40 Where the Government is contemplating appointing a member of the judiciary to an inquiry, the Commission recommends that the legislation should be amended to require consultation with, and the agreement of, the President of the court of which the proposed appointee is a member. The Commission also recommends that that there should be a statutory requirement of independence and impartiality for members of the tribunal who are not members of the judiciary.

4.41 The Commission recommends that where the inquiry is likely to involve legal issues, the Chairperson of an Inquiry Panel should be a member of the judiciary. However, the Commission does not recommend that this should be expressed in legislation as there may be circumstances in which, having regard to the subject matter of the inquiry, it is more appropriate that the chairperson be someone with expertise in the area under investigation. The Commission therefore concludes that the Government should be free to appoint laypersons as ordinary members of the tribunal.

4.42 Where the Government is contemplating appointing a member of the judiciary to an inquiry, the Commission recommends that the tribunals of inquiry legislation should be amended to require consultation with, and the agreement of, the President of the court of which the proposed appointee is a member.

(3) Termination of Appointment

4.43 The Commission now turns to consider the circumstances in which the appointment of a member of an inquiry panel may be terminated. This should be distinguished from the issue, discussed later, of when a tribunal of inquiry may be terminated.

START OF PAGE 59

(a) Tribunals of Inquiry (Evidence) Acts 1921 to 2004

4.44 The Tribunals of Inquiry (Evidence) Acts 1921 to 2004 do not lay down any guidelines as to the circumstances, other than inability to act, in which the appointment of a person to a tribunal of inquiry may be terminated.^[19] To the Commission's knowledge this has not been an issue with which members of tribunals of inquiry have been faced in the past.

(b) Commissions of Investigation Act 2004

4.45 The Commissions of Investigation Act 2004 does not lay down any guidelines as to the circumstances in which the appointment of a person to a commission of investigation may be terminated.

(c) United Kingdom

4.46 Section 12(3) of the Inquiries Act 2005 provides that the Minister may at any time by notice terminate the appointment of a member of an inquiry panel "(a) on the ground that, by reason of physical or mental illness or for any other reason, the member is unable to carry out the duties of a member of the inquiry panel;

(b) on the ground that the member has failed to comply with any duty imposed on him by this Act;

(c) on the ground that the member has

(i) a direct interest in the matters to which the inquiry relates, or (ii) a close association with an interested party, and in the Minister's opinion the members interest or association is likely to influence his decisions as a member of the inquiry panel." The Minister must, before exercising the power to dismiss, inform the member of the proposed decision and the reasons for it, and allow the member an opportunity to refute the case against him or her.

START OF PAGE 60

(d) Canada

4.47 The Canadian Federal Inquiries Act 1985 does not deal with the circumstances in which the appointment of a member of an inquiry panel may be terminated. Provincial Inquiries Legislation also does not deal with this issue. However, the Uniform Public Inquiries Act 2002, prepared by the Uniform Law Conference provides the Lieutenant Governor in Council with an express power to terminate the appointment of a member of a commission of inquiry.^[20]

(e) New Zealand

4.48 The New Zealand Commissions of Inquiry Act 1908 does not deal expressly with the question of when an inquiry member can be dismissed. However, the Guidelines prepared by the Department of Internal Affairs indicate that the circumstances in which an appointment may be terminated will be set out in the letter of appointment.^[21]

(f) Australia

4.49 The Federal Royal Commissions Act 1902 does not deal expressly with the termination of the appointment of a member of a Royal Commission.

4.50 In the Australian Capital Territory, section 11 of the Inquiries Act 1991, gives the Government the power to terminate the appointment of a member for misbehaviour or physical or mental incapacity. In New South Wales, section 6 of the Special Commissions Act 1983 gives the Executive the Power to terminate the appointment of a commissioner. The inquiries legislation of the other States does not provide an express power to terminate the appointment of a member of the inquiry panel.

(g) Recommendation

4.51 The Commission recommends that the tribunals of inquiry legislation should be amended to confer a power on the Government to terminate the appointment of a member of a tribunal of inquiry

START OF PAGE 61

where by reason of physical or mental illness or for any other reason, the member is unable to carry out the duties of a member of the inquiry. Tribunal members should have regard to the general principles of efficiency and cost effectiveness in conducting an inquiry and any gross failure to comply with such duties may be a matter to be considered when calling for the termination of appointment. Furthermore the Commission is of the opinion that the Government should have the power to terminate an appointment where the member has done anything which would render him or her unsuitable for inclusion on a tribunal of inquiry.

4.52 The Commission recommends that the tribunals of inquiry legislation should be amended to deal expressly with the circumstances in which a member of an inquiry may be dismissed, namely on the grounds of misbehaviour or inability to perform the functions of the office.

(4) Effect of the Appointment of a New Tribunal Member

(a) Tribunals of Inquiry (Evidence) Acts 1921-2004

4.53 Section 4(7) of the Tribunals of Inquiry (Evidence) (Amendment) Act 2002 deals in limited form, with the issue of the effect of the appointment of a new member of a tribunal after its establishment. Section 4(7) of the 2002 Act provides that: "An appointment under subsection (3), or a designation under subsection (5), of this section shall not affect decisions, determinations, or inquiries, made or other actions taken by the tribunal concerned before such appointment or designation."

(b) Consultation Paper Recommendation

4.54 In the Consultation Paper, the Commission recommended that this provision be amended to insert the additional provision that "an appointment shall not be made unless the tribunal is satisfied that no person affected by the proceedings of the tribunal would be unduly prejudiced thereby."^[22] The Commission sees no reason to depart from this additional protection.

START OF PAGE 62

(c) Recommendation

4.55 The Commission recommends that where a new member of a tribunal is appointed, the tribunals of inquiry legislation should be amended to provide "that this is not to occur unless the tribunal is satisfied that no person affected by the proceedings of the tribunal would be unduly prejudiced thereby."

C Reserve Members

(1) Appointment

(a) Tribunals of Inquiry (Evidence) Acts 1921 to 2004

4.56 Section 2(5) of the Tribunals of Inquiry (Evidence) (Amendment) Act 2002 provides for the appointment of reserve members to a tribunal of inquiry.

4.57 Reserve members sit with the member or members of the tribunal during its proceedings and consider any oral evidence given, examine any documents or other items that are produced or sent in evidence to the tribunal, and are present at all the deliberations of the tribunal. However, reserve members are not entitled to participate in either the proceedings of the tribunal or its deliberations. In addition, reserve members are not entitled to influence the tribunal in its decisions or determinations.

4.58 The principle on which this provision is based is that the reserve member, though not a member of the tribunal, will be fully familiar with its work and will be in a position to replace a full member if that becomes necessary.

(b) Consultation Paper Recommendation

4.59 In the Consultation Paper, the Commission stated that the introduction of the concept of a reserve member was a useful one bearing in mind the length of some modern inquiries.^[23]

(c) Recommendation

4.60 The Commission sees no reason to depart from the view that the reserve member procedure is a useful one. It caters for the rare situations in which it is necessary to appoint a new member to an

START OF PAGE 63

inquiry panel but where the appointment of a new individual would unduly prejudice the legal rights of an individual appearing before the inquiry.

4.61 The Commission recommends that the tribunals of inquiry legislation should retain the provision for the appointment of reserve members and that the law relating to the appointment, qualifications, removal, and effect of a removal of a reserve member should be the same as that for members.

D Experts

(1) Experts

4.62 The Commission now turns to the situation that arises where a tribunal of inquiry may find it necessary to retain the services of experts to conduct research on topics relating to the subject matters of the investigation.

4.63 The Commission notes that section 24(1) of the Commission to Inquire into Child Abuse Act 2000 provides that if the Commission considers that it, or a Committee, requires the advice, guidance or assistance of experts in respect of any matter, it may appoint such and so many advisers having expertise in relation to that matter as it may determine to provide it or the Committee of the Commission, as the case may be, with such advice, guidance or assistance. Similarly, section 8 of the Commissions of Investigation Act 2004 provides that the chairperson of a commission or, if the commission consists of only one member, the sole member may, with the approval of the specified Minister given with the consent of the Minister for Finance and the need to avoid unnecessary cost appoint persons with relevant qualifications and experience (including barristers and solicitors) to advise or assist the commission in relation to any matter within its terms of reference.

4.64 The Commission recommends that the tribunals of inquiry legislation be amended to confer a power on a tribunal of inquiry to appoint experts to carry out research pertinent to the matter under investigation, subject to the approval of the sponsoring Minister and the Minister for Finance and the need to avoid unnecessary cost. ??

START OF PAGE 64

(2) Assessors

(a) Tribunals of Inquiry (Evidence) Acts 1921 to 2004

4.65 The Tribunals of Inquiry (Evidence) Act 1921 did not provide for the appointment of assessors. It was first expressly included in section 2 of the Tribunals of Inquiry (Evidence) (Amendment) Act 1979.

4.66 Assessors are not members of the tribunal. Although the term is not defined in the 1979 Act, assessors are experts appointed to assist the inquiry with its task. Assessors were appointed to assist the Chairpersons of the Whiddy Tribunal (1979)^[24] and the Stardust Tribunal (1981).^[25]

4.67 It should be noted that it is open to the sponsoring Minister to appoint persons with expertise as members of the inquiry as well as assessors.

(b) Consultation Paper Recommendation

4.68 In the Consultation Paper, the Commission considered that the ability to appoint assessors is useful, particularly where the inquiry panel does not include any individual with expertise in the matter under investigation.^[26]

(c) Discussion

(I) United Kingdom

4.69 Section 11 of the UK Inquiries Act 2005 provides for the appointment of assessors. Assessors do not have any of the inquiry panel's powers and are not responsible for the inquiry report or the findings. An assessor may be appointed for the duration of the inquiry or for a defined part of the inquiry.

START OF PAGE 65

(d) Recommendation

4.70 The Commission sees no reason to depart from the approach in the Consultation Paper that the ability to appoint assessors is useful, particularly where the tribunal does not consist of any individual with expertise in the matter under investigation. The Commission does wish to stress however that an assessor may be appointed for the duration of the inquiry or for a defined part of the inquiry.

4.71 The Commission recommends that the power to appoint experts include the power to appoint assessors where appropriate.

START OF PAGE 66

[BLANK]

Note 1   This was inserted in the context of the Tribunal of Inquiry into the disaster at Whiddy Island Bantry Co Cork on 8th January 1979. See the Consultation Paper at paragraph 5.46.     [Back]

Note 2   As inserted by section 4 the Tribunals of Inquiry (Evidence) (Amendment) Act 2002. This was inserted in the context of the Planning Tribunal. See the Consultation Paper at paragraph 5.29.     [Back]

Note 3   Section 7(2) of the Commissions of Investigation Act 2004.    [Back]

Note 4   See the Public Inquiries Act, RSA 2000 (Alberta), the Inquiry Act, RSBS 1996 (British Columbia), An Act Respecting Public Inquiry Commissions, RSQ 1981 (Quebec), the Public Inquiries Act, RSS 1978 (Saskatchewan), the Public Inquiries Act, RSO 1990 (Ontario), the Public Inquiries Act, RSNS 1989 (Nova Scotia), the Inquiries Act, RSNB 1973 (New Brunswick), the Public Inquiries Act, PSPEI 1988 (Prince Edward Island), the Public Inquiries Act, RSNL 1990 (Newfoundland & Labrador), the Public Inquiries Act, RSY 2002 (the Yukon Territory), the Public Inquiries Act, RSNWT 1988 (the North Western Territory and Nunavut (Nunavut was established in 1999. Prior to that it formed part of the North Western Territory)).     [Back]

Note 5   See the Commissions of Inquiry Act 1908.     [Back]

Note 6   See generally the Royal Commissions Act 1902, the Inquiries Act 1991 (ACT), the Inquiries Act 1985 (NT), the Commissions of Inquiry Act 1950 (Tas), the Special Commissions of Inquiry Act 1983 (NSW).     [Back]

Note 7   See the Consultation Paper at paragraph 5.15.    [Back]

Note 8   See the Consultation Paper at paragraph 5.27.     [Back]

Note 9    Section 7(4) of the Commissions of Investigation Act 2004.     [Back]

Note 10   Section 9(2) of the Inquiries Act 2005 provides that a proposed appointee must inform the Minister if he has a direct interest in the matter under investigation or a close relationship with an interested party. Section 9(3) provides a member of the panel must inform the Minister if he acquires an interest or an association with an interested party during the course of the inquiry. Section 9(4) of the Inquiries Act 2005 provides that a member of the inquiry panel must not, during the course of the inquiry, undertake any activity that could reasonably be regarded as affecting his suitability to serve as such.     [Back]

Note 11    Canadian Judicial Council Position of the Canadian Judicial Council on the Appointment of Federally-Appointed Judges to Commissions of Inquiry (1998) available at http://www.cjc-ccm.gc.ca/article.asp?id=2371.    [Back]

Note 12   Department of Internal Affairs Setting Up and Running Commissions of Inquiry (DIA 2001) at 36.    [Back]

Note 13   Statement on the Appointment of Judges to Other Offices by the Executive (1998).    [Back]

Note 14   Department of Internal Affairs, Setting Up and Running Commissions of Inquiry (DIA 2001) at 36.     [Back]

Note 15   However, there is no guarantee that the inquiry will always act on its legal advice. See Maguire v Ardagh [2002] 1 IR 385.     [Back]

Note 16   See the Consultation Paper at paragraph 5.10-5.24.     [Back]

Note 17   In his evidence to the House of Commons Public Administration Select Committee, Lord Hutton, stated, “a judge is very well versed in some aspects of running an inquiry, which flows from his experience in conducting cases in court.” This, he continued, was because “they are used to hearing witnesses, they are used to assessing evidence, they are used to defining issues, …[and considering] whether a question is fair, whether it is relevant.” Second, judges have been appointed because they are independent and impartial. (House of Commons Public Administration Select Committee, Government by Inquiry (HC 2005) at 19, 20.) In his evidence to the Committee, Professor Jowell described this as “symbolic reassurance.”     [Back]

Note 18    In his evidence to the House of Commons Public Administration Select Committee, Mr Justice Beatson, stated that if an inquiry was “highly political, then it … would be undesirable [to appoint a judge] because it would expose the judge to having to adjudicate on issues, which would not be appropriate for a judge to adjudicate on.” Lord Morris of Aberavon made a similar point, albeit in more colourful language, “when a judge enters the marketplace of public affairs outside his court and throws coconuts, he is likely to have coconuts thrown back at him…If one values the standing of the judiciary […] the less they are used the better it will be.” (House of Commons Public Administration Select Committee, Government by Inquiry (HC 2005) at 23.)     [Back]

Note 19   Inability to act is dealt with in section 4(5) of the Tribunals of Inquiry (Evidence) (Amendment) Act 2002.     [Back]

Note 20   Section 22 of the Uniform Public Inquiries Act 2002.     [Back]

Note 21   Department of Internal Affairs, Setting Up and Running Commissions of Inquiry (DIA 2001) at 39.     [Back]

Note 22   See the Consultation Paper at paragraph 5.37.     [Back]

Note 23   See the Consultation Paper at paragraph 5.42.     [Back]

Note 24   See the Report on the disaster at Whiddy Island Bantry Co Cork on 8th January 1979 (Government Publications 1980).     [Back]

Note 25   See the Report of the Tribunal of Inquiry on the Fire at the Stardust, Artane, Dublin on the 14th February, 1981 (Government Publications 1982).     [Back]

Note 26   See the Consultation Paper at paragraph 5.50     [Back]

Ý
Ü Þ

BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/ie/other/IELRC/2005/3(4).html

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	Irish Law Reform Commission Papers and Reports
You are here: BAILII >> Databases >> Irish Law Reform Commission Papers and Reports >> Public Inquiries Including Tribunals Of Inquiry, Report on (LRC 73-2005) [2005] IELRC 73(4) (May 2005) URL: http://www.bailii.org/ie/other/IELRC/2005/3(4).html Cite as: [2005] IELRC 73(4)