Seanad Éireann - Volume 91 - 14 February, 1979

Private Business. - Tribunals of Inquiry (Evidence) (Amendment) Bill, 1979: Second Stage.

Question proposed: “That the Bill be now read a Second Time.”

Minister of State at the Department of Justice (Mr. D. Andrews): The purpose of this Bill is to amend the Tribunals of Inquiry (Evidence) Act, 1921 so as to remove certain defects which have become apparent over the years and to inroduce a number of desirable changes in the law in this area. As Senators are aware, the [42] Bill is being introduced now so that the changes will be effective for the commencement of the inquiry which the Government have already decided to hold into the tragedy which occurred at Whiddy Island on 8 January last.

The Whiddy disaster is, therefore, the immediate background to the Bill but I should like to emphasise that the 1921 Act and this Bill, when enacted, taken together, will form part of the general law relating to the holding of sworn public inquiries.

Before I go on to deal with the main provisions in the Bill, I should like to place on the record of this House my own and the Government's deep sadness and sympathy at the tragic loss of life that occurred in Whiddy Island and to extend, once again, our sincere sympathy to the relatives and friends of all those who lost their lives.

Senators who have examined the 1921 Act will have noted that it is a short statute providing the general framework for the holding of sworn inquiries by means of special tribunals. It has been the basis for many important inquiries since the foundation of the State.

Section 1 of the Act outlines the procedure for the setting up of a tribunal. It provides that the Government or a Minister of the Government may be resolution passed in both Houses of the Oireachtas establish a tribunal for the holding of an inquiry into a definite matter described in the resolution as of “urgent public importance”.

Following the passing of the resolutions, the Minister or the Government by instrument appoint the tribunal and the appointing instrument may provide for the application of the Act to the tribunal so appointed. That is how the wheels are set in motion, so to speak, and, therefore, as soon as this Bill becomes law, resolutions will be moved providing for the establishment of the tribunal to enquire into the Whiddy Island disaster. Senators will, at that time, have an opportunity of discussing the terms of reference of the Whiddy tribunal.

The 1921 Act, of course, pre-dated the Constitution of Ireland of 1937 and it is, therefore, only good law to the extent that it is not inconsistent with the [43] terms of the Constitution and has only to that extent been carried over into our law by the terms of Article 50 of the Constitution. As a result of a decision of the Supreme Court in 1971 and applying the reasoning of the court in that decision, it seems virtually certain that part of the 1921 Act is inconsistent with the terms of certain provisions in the Constitution and would, if challenged, be struck down. The decision of the Supreme Court to which I refer did not, of course, deal directly with the 1921 Act; it was concerned with the Committee of Public Accounts of Dáil Éireann (Privilege and Procedure) Act, 1970 (No. 22 of 1970). However, part of that Act followed in certain material respects part of the 1921 Act and this leads to the conclusion that the “flaw” the Supreme Court held to exist in the 1970 Act also exists in the Act of 1921.

The provision to which I am referring is in section 1, subsection 2 of the Act of 1921. It purports to enable the chairman of a tribunal to “certify” to the High Court the offence of any person who did any one of a number of things such as refusing to attend as a witness. The High Court was then empowered to punish the person as if he had been guilty of contempt of that court.

What the Supreme Court held in the 1971 decision was that the offence of contempt of the High Court was not a minor offence and, therefore, there had to be a right to trial by jury as the Constitution provides. The inference, therefore, is that the law must either allow trial by jury or else make the offence a minor offence with penalties restricted accordingly.

Section 3 of the Bill now before the House will rectify that defect. The Bill, as passed by Dáil Éireann, proposed to make the offences in question minor offences, to be tried in a summary manner only, with a penalty on conviction of up to £500 or 12 months' imprisonment or both, but I should point out at this stage that an amendment will be moved at the Committee Stage in this House to provide for stiffer penalties. To achieve that, the amendment will make the offences in question indictable offences—that [44] is to say there will be a right to trial on indictment before judge and jury—with penalties up to £10,000 of a fine or up to two years' imprisonment or both.

There will still, however, be provision for dealing with alleged offences in a summary manner where the court is of opinion that the facts proved or alleged constitute a minor offence, the accused does not object and the Director of Public Prosecutions agrees. When dealt with summarily, the offences will carry penalties of up to £500 by way of fine or 12 months' imprisonment or both. Some Deputies in the Dáil were of the view that stiffer penalties than those it is now proposed to provide for on indictment should be provided.

There was some suggestion in that House that a fine of £50,000—or maybe more—and up to five years' imprisonment should be provided, but I think we have to be realistic in this matter and not lose sight of the important principle that the punishment should not be disproportionate to the offences in question. Looking at the particular offences, there ought, I believe, to be general agreement that up to £10,000 of a fine and up to two years' imprisonment goes far enough. This will, I suggest, be an adequate deterrent.

I should like to emphasise also that it would be only in the more serious type of case that trial by means of indictment would be contemplated but the Government accept the view put forward in the Dáil that it is right that the provision should be there. There will also, I might add, be a further amendment of a purely drafting nature consequent on the amendment of the penalties provision, but I will deal with that at Committee Stage.

I have started my discussion of the Bill with section 3 because this section is, as I have said, designed to remove a serious defect in the 1921 Act. Before going on to deal with the other sections, I should like to mention one or two other matters in relation to section 3.

What this section does is to substitute a new subsection for subsection (2) of section 1 of the 1921 Act. Not everything is new, however. Paragraphs (a), [45] (b) and (f) are substantially the same as paragraphs (a), (b) and (c) of the 1921 Act provision. There are, however, minor differences. In paragraph (a), which creates the offence of disobeying a summons of a tribunal to attend as a witness, we are allowing for the situation where a person would have a just cause or excuse for not attending such as, for example, if that person were too ill to do so. In such circumstances, the person would not, of course, be commiting an offence. The 1921 Act was silent on this but it can be contended that a court, in construing the old provision, would have read these words in anyway. All we are doing here is making the position clear.

As to paragraph (b), we are, for the sake of completeness, making it an offence to refuse to make an affirmation in addition to the offence under the old provision of refusing to take an oath and we are also making it an offence to refuse to produce “things” legally required by the tribunal to be produced in addition to the offence of refusing to produce documents under the corresponding provision of the 1921 Act. The word “documents” will be constructed as including “things”. This is necessary to ensure that “things” will also be included where the word “documents” occurs earlier in the 1921 Act—in section 1, subsection (1) of that Act.

The only change that paragraph (f) has over paragraph (c) of the 1921 Act is that we are providing for the offence of omitting to do something, as well as the existing offence of doing something which would amount to contempt. In doing so, we are simply tightening up the law in this respect.

Paragraphs (c), (d) and (e) introduce new offences. Subsection (2), paragraph (c), makes it an offence to give false evidence to a tribunal. This is necessary because of the uncertainty that exists as to whether the offence of perjury applies to the giving of false evidence to a tribunal.

Paragraph (d) makes it an offence to obstruct or hinder the tribunal in the performance of its functions. This provision will strengthen the powers of tribunals to deal with any attempts that might be made to interfere with evidence. [46] Paragraph (e) makes it an offence for a person to fail, neglect or refuse to comply with an order made by a tribunal. This provision strengthens the powers of tribunals to enforce compliance with their orders.

I should like now to deal with section 2. The 1921 Act did not specifically provide for the appointment of more than one member to a tribunal, although its terms, in other respects, envisaged that there could be more than one member. This has led, in the past, to some doubt and so it is proposed to clear up the point. Before leaving that I should say that, although it is not spelt out in the section—because it is not necessary to do so—a tribunal will reach its conclusions by means of a majority decision. That is the usual practice and it is also usual to have only one report. Apart from that, a tribunal will be free to decide on its own procedure and there is no need to make any further provisions in this respect.

Section 2 also provides for the appointment of an assessor or assessors. In any case where such persons would be appointed they would not be members of a tribunal. Their function would be to help the tribunal by advising it, for example, on evidence of a technical nature. It would be a matter for a tribunal itself to decide on how best to utilise the services of assessors and it is thought best to leave it totally free to do so. Hence, the Bill provides only the minimum necessary in this respect. The position, I might add, will be analagous to that which obtains at present in the Superior Courts where, under the rules of the Superior Courts, there is general provision for the appointment of assessors but no detailed rules dealing with their role. It is left to the court in each case to decide.

That brings me to section 4. Doubt has been expressed in the past as to whether a tribunal appointed under the 1921 Act had general power to make orders corresponding to those which the High Court or a judge of that court could make. The 1921 Act vested in a tribunal the powers of the High Court but only in relation to the specific matters set out in section 1, subsection (1), paragraphs (a), (b), and (c) of that Act. [47] Section 4 of the Bill will remove any such doubt and a tribunal will be able to make such orders as it considers necessary for the purpose of its functions and will have all the powers, rights and privileges that are vested in the High Court in respect of the making of its orders. I should like to emphasise, in this regard, that a tribunal will only have the powers, rights and privileges of the High Court in making orders necessary for the purposes of its functions.

Bearing in mind that the main function of a tribunal is to find facts and that it will not be concerned with imposing legal liability for any wrongs that might have been done—that is a matter of civil law and is reserved to the courts—it can be seen that the powers given to a tribunal under section 4 are quite restricted. What is envisaged here is that, for example, a tribunal should have power to keep order at its sittings.

Section 5 provides that statements or admissions made by a person before a tribunal or by a person being examined on commission or abroad—the power to examine on commission or abroad is contained in section 1, subsection (1), paragraph (c) of the 1921 Act—will not be admissible against that person in any criminal proceedings other than proceedings for the offence of giving false evidence to a tribunal.

I will turn now to the last section of substance—section 6. Under the 1921 Act, section 2, paragraph (b), tribunals have power to authorise the representation before them by counsel, solicitor or otherwise of any person appearing to them to be interested. It has, however, been a matter of some criticism in the past that tribunals have had no power to award costs either to or against persons appearing before them and the Bill now proposes to empower tribunals to do that. Certain criteria by reference to which this would be done are specified, namely, that the tribunal is of opinion that, having regard to the findings of the tribunal and all other relevant matters, there are sufficient reasons rendering it equitable to do so.

The section would allow a tribunal to award costs against any person even if [48] such person were not involved in the proceedings at all and this has been criticised in Dáil Éireann. Such a provision is necessary, however, to enable costs to be awarded against a particular Minister—in effect, the State—because, in many instances, the State may not be involved before a tribunal at all. On this aspect, the Minister for Justice agreed in Dáil Éireann to have another look at the drafting of the section to see whether it could be tightened somewhat. The drafting has been re-examined in consultation with the Attorney General but it is considered that it would be undesireable to alter the section in any way.

Senators will appreciate what the Bill is seeking to do here. It may be that some relatively poor persons will be represented before—to take as an example—the proposed Whiddy tribunal and that that tribunal will decide that some other person or body should be made to bear those persons' costs. That, I think, is an extremely necessary and desirable power to give the tribunal. Moreover, the section has built into it the safeguard that the tribunal, in coming to such a conclusion, must be of opinion that there are sufficient reasons rendering it equitable to do so. That ought to eliminate the risk of a tribunal acting arbitrarily. If it were to act in such a way its order could be challenged in the courts and would be liable to be set aside.

This is an urgent measure made necessary by a very tragic event. It would, of course, be better if there had been more time available to devote to it. If such were the case, it might have been possible to consider repealing in full the old 1921 Act. That would, however, have produced unacceptable delay because a great deal more consultation would have been necessary. This Bill introduces only those changes which are considered to be essential to enable the tribunal which is to be set up shortly to function effectively. I hope Senators will view the Bill in that light.

Mr. Alexis FitzGerald: The Bill is, of course, welcome because it is necessary to act quickly in the tragic situation it is confronted with. Taking the Minister up [49] on the very last note he struck, I must say he personally can be exempt from the generality of my criticism here. Really this is a very good example of quite unjustifiable delay. I am not now talking about the five or six weeks since the Whiddy disaster. I am talking about a piece of legislation which has been on the Statute Book since before this State was founded and which has been known to be defective for very many years of the existence of this State. The most serious possible defect in it only came to the notice of the executive and their advisers in what must in their time period be a very short time indeed, that is, only eight years ago when in June 1971 in the Haughey case it was patent that this Act would have to be amended before a further tribunal could be established.

I wonder would the Minister care to say how long this Bill has been lying on somebody's desk. I suspect it may have been lying on somebody's desk for a long time, perhaps long preceding the existence of this Government. I am merely concerned to know why these things happen, and how wrong it is that they should happen, and how right it is that we should protest when they do happen. There may be many other similar cases of things that ought to be done which could be done if there was a will to get them done. We had this suggestion of the Aireacht with regard to policy formulation in Departments, whether there should not be some unit in every Department which would meet the members of equivalent units in all Departments and be, as it were, a legislative review unit which would see to it, particularly in regard to non-contentious legislation of this kind, that it was got out quickly and not debated against the background of a fearful tragedy of this kind. I make that as a practical suggestion. I do not know whether there is any merit in it, but the present situation is defective. It is very wrong indeed. It is quite clear from the amendment to the Act that the defects were there independent of what happened in the Haughey case. They were already known to the advisers to different Governments. I take that as my first point and I regard it as an important first point.

The second point is equally important. [50] I do not want to traipse off into generalities, but recently somebody commenting on another controversy referred to “political lambegging”. The only justification for “political lambegging” or the only thing which would make it tolerable, and not as seriously damaging as it might otherwise be, is to have the Executive going about the business of governing seriously and the legislators doing the business of criticising and the Executive listening to the legislators when they are talking. In this case the Minister has been listening to what was said in Dáil Éireann and we had a ministerial amendment in the Dáil which showed what further thought about any draft legislation can do.

We have before us now another amendment which arises from a contribution made in the Dáil. That is welcome. It is good. It is encouraging to the legislators to do their business with all the competition on them for their time. Human beings tend to think a little too much about what will happen in the next six months and insufficiently about what will happen in the next six years. I compliment the Minister on his reaction to the valid criticisms made in the other House.

When we get to the proposed amendment, I will be asking am I correct in understanding that the application of the Criminal Procedure Act, 1967 means in effect that we are in a guilty or indictable situation, that the proceedings contemplated in the existing Act and the amendment Bill are summary proceedings punishable by a fine or imprisonment, or both, in which case you could have a proceeding with a conviction against the defendant. Am I misunderstanding the application of the section of the Criminal Procedure Act, 1967, in construing it as meaning that the penalty and imprisonment provision for the minor offences only arises under that section of the Criminal Procedure Act if there is a plea of guilty, and where there is not a plea of guilty that section does not apply? I may be wrong in that and, if that is so, are we left with the position that, if there is not a plea of guilty, there has got to be an indictment? If that is the position, I make no [51] criticism of it. I just want to be clear that I know it is the position.

Mr. D. Andrews: It is the position.

Mr. Alexis FitzGerald: It seems to me that it totally removes all difficulties that might arise from the Supreme Court not having solemnly pronounced on it.

Is there provision here for recurring offences, or is that inherent in the whole affair? On the first day a person may say: “To hell with you, I am not giving evidence.” Shortly afterwards he is found guilty of an offence and is fined £500 and goes into court and sits happily there for the rest of the inquiry and there is no further offence he can be charged with. I do not know anything about criminal law. I just ask the question so that we can get it clarified.

Section six covers the cost awarding procedure. Is the section capable of the defence that any person may be named to pay any costs, any person named in the order, without necessarily notice having been given to him to be heard on the matter as to whether or not he should be required to pay the costs? I should have thought that an amendment of that section could make it absolutely clear that there could not be a breach of natural justice involved for some person who spurned everything and was found to be responsible for what the facts disclosed, for one reason or another. If he knew he had to pay X thousand pounds would he have the defence that the section which gave rise to the simple contract debt was defective in itself in that he had no reason to believe from the silent attitude of the members of the tribunal when he was giving his evidence that they would find him liable for everything and he did not know a single thing about it until suddenly he was told he had to pay the costs of the whole thing?

I know the Minister had the Minister for Finance in mind, but that is easy enough to deal with. I am thinking of a person other than the Minister for Finance who might find himself sueable as a simple contract debtor and who would be asking solicitors and barristers: “Is there any way I can get out of this frightful bill?” They would look [52] at the section and say: “Did you know anything about this?” He would say: “Not until I was told to pay.” I would be afraid to mention the figure in case it would give rise to a further wage claim. A large sum of money might be involved in the award. In that sort of situation people will go to great distances to see if they can get out of it.

I thought the section could have been saved by putting a requirement on the tribunal. No doubt it is open to the tribunal not to so order, but what is very likely to happen is that the tribunal will say: “We have heard everything now. We have to go away and try to understand what we have heard and put our heads together and announce our judgment in due course”, and we will find in the last paragraph something like “Mr. A.B. or A.B. Ltd. to pay everything.”

They may not have said anything in the course of the hearing which would indicate that this was to be their finding. I should have thought that if they were finding that somebody was liable for the costs, he should be given a right to be heard as to why he should not be required to pay them. After all, he will owe a big bill, or a small bill, or some kind of a bill, at the end of their decision on this matter, and he should be heard on it, or be free to be heard on it. If the Minister wants to save his section and make quite sure that he recovers the money, he should not just think of the Minister for Finance.

I am a little troubled about the question of assessors although I know the Minister has thought about this and has had the benefit of the Attorney General's thinking on it also. Here again ignorance increases the number of words I use, because I am not as clear as I should be on what actually happens in the courts with regard to assessors. I would have thought there was one distinction between the assessors in the courts and the assessors here. In the case of the courts—I think I am right but I am guessing—the courts appoint the assessors. They choose the people apt for what they want to have assessed. These are persons who, no doubt, they satisfy themselves are aptly qualified for the assessment. Therefore, they are in a control position which is very clear. They [53] can tell the assessors what they want them to do, when they want to bring them in and make them act, and so on.

Here we will have assessors appointed by the instrument setting up the tribunal which consists of one or more persons. Incidentally, I presume the Minister understands that he has beheaded the tribunal. He has no chairman of the tribunal. If I read correctly what he has done to the original Act, the chairman has disappeared with the deletion of subsection (2). I do not know whether he wants to have a chairman but if he does he should describe him properly. Anybody might grab the chair first, but that might not be the most delicate way of exposing his authority. The chairman should be named.

Mr. D. Andrews: If the Senator looks at section six he will see the word “chairman” there.

Mr. Alexis FitzGerald: Who picks the chairman?

Mr. D. Andrews: The chairman is already picked.

Mr. Alexis FitzGerald: We read the papers but they are not always right. Would it be a good thing to provide “consist of a chairman if there is more than one person”? I know common law says things are decided by majorities but a statutory tribunal is not an institution in the common law. What if they disagree? Do they have to speak with one voice or with two? I do not know anything about the miserable thing that happened down in Whiddy, but no doubt there are people on the other side who think they know this, that and the other thing. I notice there is a provision there for a supplemental instrument. I suppose that is there in case somebody dies.

Mr. D. Andrews: I am sure the instrument setting up the tribunal would appoint the chairman. On the question of unanimity, in the event of there being more than one person the same situation would apply as would apply in the Supreme Court on a constitutional question. In other words, there would be only one report.

[54] Mr. Alexis FitzGerald: Is it provided that there must be unanimity?

Mr. D. Andrews: There will be a report to the Government from the tribunal and in the event of there being more than one member sitting, that would be a unanimous report.

Mr. Alexis FitzGerald: I would have liked that to have been clearer.

Mr. D. Andrews: While I accept the Senator's concern in relation to this and other matters, we could add so many more sections. Within its terms of reference we should give the tribunal as free a hand as possible in relation to its own internal mechanics and procedure.

Mr. Alexis FitzGerald: There might be value in my point about the assessors. I would have thought the tribunal will become better informed about this than anybody is at the moment. Is the Minister satisfied that he has the powers to make a supplemental appointment of an assessor? For example, the courts can appoint assessors.

Mr. D. Andrews: The courts can appoint the assessors, as I understand it, under the rules of the superior courts, but the rules are silent on the exact functions of the assessors.

Mr. Alexis FitzGerald: That is probably the way this should be too.

Mr. D. Andrews: It should be in this instance, certainly.

Mr. Alexis FitzGerald: I would not dispute that. The courts can get somebody else if they want to.

Mr. D. Andrews: The tribunal should be left alone to conduct its own business.

Mr. Alexis FitzGerald: Say it does not have the right assessors?

Mr. D. Andrews: I would fire the assessor and get in another one.

Mr. Alexis FitzGerald: That is not contemplated?

[55] Mr. D. Andrews: It is not contemplated, but I suggest the chairman of the tribunal would take that action in the event of having an unsatisfactory assessor.

Mr. Alexis FitzGerald: He has no power to fire the assessor.

Mr. D. Andrews: I know he has no power to fire him directly, but I am sure he can tell him to disappear.

Mr. Alexis FitzGerald: I do not think the Minister is being too serious about that.

Mr. D. Andrews: I am being very serious.

Mr. Alexis FitzGerald: I invite him to be more serious still.

Mr. D. Andrews: I will do my best.

Mr. Alexis FitzGerald: The tribunal may consist of one or more than one person sitting with or without an assessor. The Minister is saying that if he finds the assessors he has are not adequate, he can sit without them. I am talking about the situation where he wants an assessor to sit with him who knows about a particular branch of the subject. How does he get him? In the courts they can get him quite easily.

Mr. D. Andrews: I will deal with that when I am replying to the Senator's contribution.

Mr. Alexis FitzGerald: Very good. The Minister in his speech dealt with a point concerning me. I should be grateful if he would elaborate on how this question of privilege in publication of proceedings of the tribunal arises. Is the Minister satisfied with the existing provisions, for example, for contemporaneous publication of court proceedings, with regard to the law of defamation; that the Defamation Act itself would save them in their contemporaneous publication of the proceedings of the tribunal? I think the Minister is satisfied with it. He seemed, if I understood him correctly, to deal with [56] this point when he was introducing the Bill, but perhaps he was referring to something else.

Professor Conroy: I would like to welcome this Bill and to congratulate the Minister on the speed with which it has been brought in and the alacrity with which it was realised that such an additional Bill was required in relation to a tribunal of inquiry. I would like to join with the Cathaoirleach in the expression of sadness at the appalling tragic event which precipitated the need for both this Bill and the tribunal of inquiry. The Bill before us is, of course, not specifically related to the particular disaster about which we all know and, as the Minister has indicated in his speech, there will, in due course, be an appropriate resolution, on which we can make our comments relative to that particular disaster, and to any particular tribunal which is set up to inquire into it. This Bill introduces and, perhaps, brings to our attention certain general matters of principle. Some of these I would very much like to welcome. It is an excellent suggestion that witnesses brought before a tribunal who may not be very well off or who, if the tribunal is prolonged, would be taken away from their business or their affairs for a considerable period of time, should be without any undue financial hardship. That a tribunal should have the powers to do this is an excellent introduction.

I think it is also particularly relevant, in the modern situation, that the tribunal, or any tribunal, should have exceptionally wide powers as regards assessors. I am not a lawyer, but if I understand the position correctly, they are primarily there to provide expert or technical advice to a tribunal making an inquiry. This may have been important in time past but it is infinitely more important now when matters of the most obscure advanced scientific nature may be extremely germane to any given inquiry. I can think of many circumstances in which it is absolutely essential. It is my opinion that a tribunal of inquiry should have the widest possible powers in relation to the appointment of an assessor or, if need be, assessors. If the initial assessors are judged inadequate or unable, for one reason or [57] another, to give sufficient evidence, it should be possible to appoint further assessors. This is absolutely essential in the modern day and age.

One further aspect of that which I hope will de facto be covered by the Bill and which is, perhaps, more relevant today than in the past, is the much more international scope of any tribunal of inquiry. The original Bill, as I understand it, and indeed much of what is in this Bill before us at the moment—might well be construed in a domestic sense, giving wide and full powers to a domestic tribunal of inquiry. Of course we cannot exceed our legal jurisdiction in regard to witnesses and so on, and yet it is a fact that many inquiries, certainly inquiries into any form of marine disaster, air disaster or whatever of this nature, in actual fact involve not only international matters in the sense that the actual technical content might be of an international nature, but also the fact that those primarily involved might merely have been transients in this country, as in the case of an aeroplane flying over it, and that those primarily responsible might not only not be nationals of this State but may well have never entered the State; that it may be extremely difficult for a tribunal of inquiry to reach the actual people responsible. The Minister has accepted that I am not entirely happy with the Bill. There are many more things we would like to do. I am not entirely happy that the law, as it stands at present, enables this country, or indeed any other, to effectively conduct an inquiry into matters which involve international affairs or multinational companies. We will have to look at this aspect very closely indeed, both in general terms and in terms of the specific resolution relating to the disaster which is in all our minds at present. This is a very crucial point. It would be quite useless for a tribunal of inquiry to be merely able to bring as witnesses local employees, or local representatives, or local agents, of some international concern or company, persons or agents who are quite incapable, with the best will in the world, or under whatever compulsion of providing evidence which may be absolutely vital to any worthwhile inquiry. This is something which we will [58] have to look at and I imagine it would, in legal terms, be extremely difficult to do. I am sure that in the present circumstances most reputable companies would fully co-operate but, nonetheless, it is something which we will have to bear very closely in mind. Perhaps the Minister will explain; he refers in his speech to witnesses having a just cause or excuse for not attending. I presume this is something we will leave to the discretion of the actual tribunal, as to what they would accept. I would like to welcome the Bill.

Mr. Harte: We, in the Labour Party in the Seanad, wish to be associated with the expressions of sympathy to the relatives and friends of those who lost their lives in this awful tragedy. The Bill is, naturally, welcomed by all in the Labour Party and we wish to see its speedy passing through the Seanad. I hope there will be no delay in setting up the tribunal and that both Houses will very soon get an opportunity to have a wide discussion on the motion to establish the tribunal.

The Minister refers in his Second Stage speech to the terms of reference. These will provide for a much wider debate. While the Bill itself contains very effective amendments to the Tribunals of Inquiry Act, 1931, the terms of reference will be of tremendous importance. I cannot imagine that we will never again be in a similar situation and having regard to all the interests that would have to be served, I say that the terms of reference will be very important indeed. They would be of great concern to the relatives and friends of all the victims; they will be of great concern to the people of south-west Cork and the country as a whole.

I am one who complains very often about the privileged and favoured sections of the community. I would like to take this opportunity of saying that in my opinion the terms of reference will be also of extreme importance to the Gulf Oil Corporation. That is why I think that there will be plenty of scope when we get to the point where, in fact, we have a clear indication of what the terms of reference will be. I do not think this is the time to start attributing blame; it [59] would not be appropriate and I should probably be ruled out of order, anyway. The other House has dealt with this Bill and we are now charged with putting it through this House. Had I been speaking before Senator FitzGerald, I should have made an appeal that the people in the Seanad with legal minds would assist the House on this Bill in such a way that the lawyers acting for either side, when the tribunal is established, would be left with as little scope as possible to argue on the tribunal's authority or claim that it is what it is not meant to be or should be. I should have appealed, had I been the first speaker, to those legal people in the House to assist where possible, the close examination of the Bill. I look at the Bill and I can find no flaws in it but I have not the legal mind to examine it in depth. I would appeal for that to be done. I missed Senator FitzGerald's speech but have no doubt he probably did raise some technicalities and that satisfies the situation from my point of view.

I am also very pleased that the provisions refer misdemeanours to another court. This is not the time to lay blame, but it is unfortunate that we have to have terrible tragedies before we see the need for stronger legislation, but that is one of those things in life; it is inevitable. I welcome also the aspect of the Bill to bring about the fullest possible participation by witnesses and to protect against false evidence being given. It is a very good development and will strengthen the Act. It is worrying to the ordinary person that we seem to have advance protective legislation when dealing with banking, industry and industrial grants but when it comes to dealing with the safety of the person we do not seem to be so well equipped. This is really a pity. I do not suppose we shall ever be able to do that to any effective degree, but we can do it in some areas. We could in framing our legislation have regard to this, particularly in view of the type of industry developing or coming into the country at present. We are going to be faced with more of these problems in the future, whether it be the nuclear energy developments in Wexford—I do not know whether that will become a reality [60] or not—or whether it be more exploration by oil companies. We should try to pay as much attention as possible to the protection of the person in whatever legislation we draw up. We exercise foresight in other areas; it should also be possible in this area.

It is the job of the tribunal to discover where the blame lies. They will decide whether or not the safety of the person was protected. When we are drawing up legislation we should try as far as possible to see that any legislation enabling people to set up business has a very deep commitment to, and concern about, the safety of the person.

Another point, which may be premature or irrelevant, is that we are going to have many French witnesses. There is a great difference between interpretation and translation. I trust that that has been one of the considerations when dealing with the terms of reference.

I have no argument with the setting up of the tribunal and I trust the integrity of the people who comprise it. It is stressed in the Offical Report of the Dáil debate that the tribunal be held where the incident took place. I am not too worried about that. If the tribunal is established and if we accept that the people are of integrity—which, not doubt will be the case—and we accept the legislation as it is framed with the amendments, and accept that they are effective enough, it is irrelevant where the tribunal sits. It might be psychologically good, from the point of view of the people living in the area, but not from the point of view of the French witnesses who have to come to give evidence, so it is a toss of the coin, really. I have no great difficulty about that, even though I agree with some of the remarks made about accommodation, air facilities and so on being available there.

I shall end by saying that I trust the tribunal's findings will satisfy. The legislation we are about to pass today, and I hope it is passed very quickly, will obviously be needed in new situations and in other tribunals. That is why I have made the appeal to the legal people here to see that the Bill gives the lawyers on either side as little scope as possible. I [61] know that is a peculiar request to put to lawyers.

Mícheál Cranitch: This is a very welcome Bill and, in the context of Senator FitzGerald's opening remarks, we may truly say: “Más maith is mithid”. We may sometimes ask ourselves, faced with an emergency, why such and such a regulation or an Act is not before us today. There are parts of Ireland where we can point to what is now a safe, straight stretch of road which was not very long ago a dangerous bend and nobody thought of doing anything about it until some unfortunate person lost his life. Arrangements were then made to have the corner removed and the roads straightened to make them safe.

The tribunal cannot be set up until this Bill becomes law; then it will be set up and the inquiry can go ahead. The Minister in his Second Stage speech says that we will then have a further opportunity of discussing the whole matter, and I very much look forward to that stage. I shall not indulge in any futile speculation as to what was or was not the cause of this, that or the other thing leading to the terrible disaster. The time for that will come later on.

I am very glad to see that the Minister intends to bring in an amendment in connection with penalties, and has given particulars of these. The amendment will make the offences in question indictable offences, that is to say, there will be a right to trial on indictment before a judge and jury, with penalties of a fine of up to £10,000, or up to two years imprisonment, or both. In the Bill as initiated, we have reference to a fine not exceeding £500 or, at the discretion of the court, imprisonment for a term not exceeding 12 months. A fine of £500 in this day and age is unacceptable.

Finally, in the closing stages of his speech, the Minister says:

This is an urgent measure made necessary by a very tragic event. It would, of course, be better if there had been more time available to devote to it. If such were the case, it might have been possible to consider repealing in full the old 1921 Act. That would [62] however have produced unacceptable delay because a great deal more consultation would have been necessary. This Bill introduces only those changes which are considered to be essential to enable the tribunal which is to be set up shortly to function effectively. I hope that Senators will view the Bill in that light.

Well, indeed, we do. I make the suggestion that, at some future date, the Minister would consider going into that very point and bringing in a comprehensive Bill which will give the widest possible powers, or make such powers available to a tribunal which will be set up. As sure as we had that terrible disaster, we will have other such disasters in the years to come, we hope not for a long time. These things do happen and it is well to have our legislation ready so that tribunals and courts of inquiry can be established without any delay.

Minister of State at the Department of Foreign Affairs (Mr. D. Andrews): I am most grateful to the House for the various views expressed. If I may say so, the last view expressed by Senator Cranitch was an excellent and succinct contribution. I often think that contributions in this House and in the other House are the better for being brief. It is a pleasure to learn from the experts and I congratulate the Senators in that regard.

Senator Cranitch referred to the need for more time for the drafting of the Bill. I accept that point entirely, but here you have a situation which demanded urgency and the Bill was needed so that this particular tragedy in the nation's history could be dealt with immediately. Also, the Bill itself, as drafted, will amend and incorporate the provisions of the 1921 Act. As regards the drafting of a Bill of the magnitude he would wish for, account must be taken of the mechanics of how a Bill is actually given birth to and how it grows to be a full person in the context of a Bill. As I understand the situation, a scheme is prepared by the Department concerned, for example, by the Department of Justice and the Attorney General in this instance, and sent to the Government. It [63] is then sent to the other Departments for comments. It is returned to the Government and the Government approve it or add to it or amend it and it is then sent back to the Department concerned. After it has been drafted by the parliamentary draftsmen it is sent to the Government and the First Reading is then given in this House or the other House and the Bill is circulated to Members. If we had decided to replace the entire 1921 Act we would not, because of the inevitable delays involved, have a Bill of this nature at this time. It might be months in the future before we would.

Senator Cranitch has a personal interest in the Bantry area and has spent his energy and time, with the other public representatives in the area, trying to alleviate the pain suffered by the various people during and after the tragedy. He welcomed the amendment to add indictable offences, and this has been generally welcomed by those Senators who contributed to this legislation. It was people like Senator Cranitch, and indeed, in fairness, the Opposition in Dáil Éireann, who were responsible for the Minister for Justice recommending this particular amendment of the creation of an indictable offence, with trial by judge and jury, a fine of £10,000 and/or a prison term of two years.

People have commented on the minor offence dealt with by a district justice summarily, with a fine of up to £500 and/or up to 12 months' imprisonment. We should not so much be looking at the financial penalty, which is important in itself, but rather at the prison deterrent. We are dealing with people who in the nature of things would be in awe of the courts of the land and in awe, by definition, of the tribunal. I think that the people would be experiencing for the first time a tribunal of this nature and never have been inside a court in their lives. Consequently, I believe that the imprisonment penalty is the real deterrent, and in that regard in addition to the summary offence, we are adding by way of amendment the indictable offence I have outlined.

[64] Senator FitzGerald made the point, with some justification, in his usual excellent contribution to the Seanad about the delay in amending the 1921 Act. The blame for this, if there is to be blame, must be shared by those who are in Government and had the opportunity in Government to amend the Act. Consequently, this Fianna Fáil Government, the last Coalition Government and previous Governments must share the blame, if there is to be blame apportioned. However, I do not think we are in the business of apportioning blame in this regard. We are trying to deal as expeditiously as possible with a problem that must be dealt with urgently. I should like to point out that, as Senator FitzGerald is aware, the staff resources necessary to keep all legislation up to date are not available although I feel that there may be an improvement in this regard in the not too distant future.

In relation to the question of offences under the Bill the ordinary legal situation will apply. I believe the question was in relation to recurring offences. Was that the expression Senator FitzGerald used?

Mr. Alexis FitzGerald: Continuing.

Mr. D. Andrews: However, under the Bill the ordinary legal situation will apply. Each time an offence is committed there can be a new prosecution on a separate count. It is thought preferable to adopt this approach rather than attempt to draft a recurring offence provision. I am sure the Senator will appreciate our concern in that regard. We could run into difficulty in relation to the defence of aut refois convict.

Senator FitzGerald raised the question of assessors. It is a moot point whether there is any disadvantage in allowing a tribunal to appoint the assessors. The tribunal will have full control over the assessors and their role. That is the important thing. The Government, in appointing these assessors, could always consult with the proposed members of the tribunal but I feel the tribunal should have flexibility in this regard. I do not think we should be too specific in regard to the appointment of these assessors.

Senator FitzGerald raised the question of the awarding of costs against a [65] person who is not present at the inquiry. I believe the discretion of the tribunal could be exercised in this way. For example, it occurs to me that the tribunal could invite a person against whom it is intended to award costs to attend the tribunal to be told why costs have been awarded against him. That would be the answer to it. I agree that the principles of natural justice which have been raised by the Senator would be of particular concern to a person like the judge who is to be the chairman of the proposed Whiddy Tribunal. Having regard to his experience as a High Court Judge, he would ensure that the principles of natural justice are not overridden by the absence of that person or persons against whom it is intended to award costs. Also in regard to costs, the question of the application of equity comes in. I mentioned that in my speech.

Senator Conroy mentioned the international aspects of this matter. The 1921 Act allows for the taking of evidence on commission or abroad but witnesses outside this jurisdiction cannot be compelled to attend. The position here, is the same as in the general law, where, for example, even in a murder case a vital witness outside the jurisdiction could not be compelled to attend. Unfortunately, that is the reality of the situation.

Professor Conroy: I thought there was some way in which international companies involved could at least be encouraged.

Mr. D. Andrews: There should be some persuasiveness in relation to it by the international companies involved and I am sure that they will take account of what has been stated in the Houses of the Oireachtas. It is an important point. They would be in dereliction of their duty if they did not ask in a persuasive fashion for the presence of an important witness. I am satisfied that they will take the Senator's point.

Senator Harte made a comprehensive survey of the Bill and was humble enough—humility is a very important ingredient—to accept that Senator FitzGerald had made the legal points. He made the point that the safety of persons should be the primary concern [66] of any Government or, indeed, of any Act concerned with person or persons. I accept that entirely. He raised a point for the first time about the question of French witnesses coming to the tribunal and the need for interpreters. He can take it that that will be provided for. The location of the tribunal was also raised by Senator Harte and whilst it has been suggested that the location should be in the Bantry area he did not necessarily favour that. The location is not strictly relevant because we want to get at the truth as to what happened. Whether it is in Bantry, in Cork, Limerick, Galway or Dublin I do not think it will make any difference to the efficacy of the tribunal. The air in Bantry is very good and the people there are very hospitable people as, indeed, was witnessed by their concern at the time of this desperate tragedy. They were wonderful in every respect. I had the opportunity of being there for almost half a day at the time of the tragedy on behalf of the Government. Senator Harte said that the location of the tribunal was not the relevant thing, rather it was the findings of the tribunal which were important.

I should like to return to the question raised by Senator Conroy of disobeying a summons. The question as to whether a cause or excuse is just will be a matter for the courts if the person is prosecuted. However, in the first instance it is a matter for the tribunal to accept or to reject the particular excuse offered.

I should like to pay tribute to the Opposition here and in the Dáil for this all-party approach. It has been very helpful and, as Senator FitzGerald has said, the attitude adopted by the Minister for Justice can only merit the highest of praise, in regard to amendments proposed, in fairness, as a result of discussions between the Minister and Members of the Opposition in the Dáil. It has been a worthwhile exercise. I would very much appreciate if the Seanad would allow me the Committee Stage and subsequent Stages.

Question put and agreed to.

Agreed to take remaining Stages today.