Seanad Éireann - Volume 91 - 14 February, 1979

Private Business. - Tribunals of Inquiry (Evidence) (Amendment) Bill, 1979: Committee and Final Stages.

[67] Sections 1 and 2 agreed to.

SECTION 3.

An Leas-Chathaoirleach: Amendments Nos. 1 and 2 are cognate and may be discussed together.

Government amendment No. 1:

In page 2, line 22, the delete “following subsection” and to substitute “following subsections”.

Minister of State at the Department of Justice (Mr. D. Andrews): The attitude adopted in the other House, arising from the consensus between the Minister for Justice and the Opposition spokesman who contributed so ably to the debate in that House, led to this amendment.

Amendment agreed to.

Government amendment No. 2:

In page 3 to delete lines 6 to 9 and to substitute the following:

“the person shall be guilty of an offence.

(2A) (a) A person guilty of an offence under this section shall be liable on conviction on indictment to a fine not exceeding £10,000 or, at the discretion of the court, to imprisonment for a term not exceeding 2 years or to both such fine and such imprisonment.

(b) A justice of the District Court shall have jurisdiction to try summarily an offence under this section if—

(i) the justice is of opinion that the facts proved or alleged against a defendant charged with such an offence constitute a minor offence fit to be tried summarily,

(ii) the Director of Public Prosecutions consents, and

[68] (iii) the defendant (on being informed by the justice of his right to be tried by a jury) does not object to being tried summarily,

and, upon conviction under this paragraph, the said defendant shall be liable to a fine not exceeding £500 or, at the discretion of the court, to imprisonment for a term not exceeding 12 months or to both such fine and such imprisonment.

(c) Section 13 of the Criminal Procedure Act, 1967, shall apply in relation to an offence under this section as if, in lieu of the penalties specified in subsection (3) of that section there were specified therein the penalties provided for by paragraph (b) of this subsection, and the reference in subsection (2) (a) of that section to the penalties provided for in subsection (3) of that section shall be construed accordingly.”

Amendment agreed to

Section 3, as amended, agreed to.

Sections 4 and 5 agreed to.

SECTION 6.

Question proposed: “That section 6 stand part of the Bill.”

Mr. Alexis FitzGerald: I do not want to earn any discredit by using more words than necessary but I would like the Minister to comment on this section and on what I said on Second Reading in regard to it. I said it was dangerous to have such a provision. A real defect is being repaired and I accept that but it is dangerous to repair it in such a way as to leave any defect in it. We have here a bald provision. The tribunal is not a court though it has power to make certain orders, which cannot be looked at as always consisting of one or more persons who are judges and, therefore, conscious of what judges should do. It is dangerous to have a provision whereby any person may be named in the order to pay all the costs without it being provided in the section which gives rise to the order that in relation to the making of that order he is to be heard, as a matter not of the good exercise of a [69] judge of his natural equitable discretion but as a statutory obligation that he should do so.

Mr. D. Andrews: The Senator has made his usual perceptive observations on the section. I would respectfully suggest to him that the section has built into it the safeguard that the tribunal, in coming to such a conclusion in relation to the awarding of costs to one person against another, must be of the opinion that there are sufficient reasons rendering it equitable to do so. In that regard, whilst I accept the Senator's point about the fact that there is a judicial personage present—we already know whom he is—and that the other people may not necessarily be judges or persons with specific knowledge of the law, they would be guided by the chairman's deep knowledge of matters of this kind. In that regard we need not have any fears. I can understand the Senator's concern in this regard. It is a genuine concern, a concern well expressed, but one will find that the chairman, or the persons assisting the chairman, will be very conscious of their obligations in regard to the hardships which might or might not be caused by the absence of a person who will find himself the following day being told that the tribunal had awarded costs against him. The tribunal will be well aware of the situation and will take it seriously into account. I could not envisage the tribunal awarding costs against the best interests of natural justice. We know that one of the main principles of natural justice is that a person should be heard in his or her own cause, and can be represented in that cause. I must tell the Senator that this point that he has raised in relation to section 6 is well catered for by the personnel of the tribunal and by the personage of the judge.

The other aspect is that the Supreme Court has held, in the East Donegal Marts case, 1970 Irish Reports, page 317, that there is a presumption that discretions and adjudications which are permitted or provided for by a post-1937 Act, such as, for example, this Bill, will be conducted in accordance with the provisions of constitutional justice. Not only do we presume that natural justice [70] will be applied but constitutional justice also. That is the post-1937 presumption. This was articulated in that case. I have that case in front of me and, to be absolutely honest, do not know anything about it.

Mr. Alexis FitzGerald: We are united in ignorance but I must persist to get expunged one delusion from the Minister's mind. If that is the achievement of the day, it will be much. That is that in this section and its language there is no relevance whatever to the tribunal that is now to be established to the validity of my point with regard to this section which is going to affect every other tribunal that may ever be appointed by virtue of the Tribunals of Inquiry (Evidence) Acts, 1921 to 1979. Therefore, we must contemplate that there will be men not aware of these matters sitting on these tribunals some day. We must see that such men are enlightened by our requiring them to do certain things before certain consequences follow.

It is one thing to have the Minister for Finance deciding that he will go and look for a Vote for the thing, whether he should or should not is another matter in any given case but it is another thing to enact that some individual or body corporate is going to be made pay. It is essential that we see that if they are going to be made pay they really are going to be made pay in such a way that they are liable and that the tribunal will do everything it ought to do.

I confess that I started off with some doubt about the validity of this section and some doubt about this matter of awarding costs. I hope that the Minister is satisfied and is so advised that this is definitely not a judicial function. I know we have this costs-awarding operation going on under various other tribunals of one kind or another but I have not had an opportunity of studying the various Acts. For example, I think there is something like this in the town planning code and in relation to rating and that there are various other codes. I would like to see this being as good and as justifiable. I do not know to what extent the post-1937 point will be affected by a pre-1937 tribunal. It is a tribunal set up [71] under an Act which is the Principal Act. A tribunal set up before the Constitution was set up by the enactment of “the King's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons ....” That is the preamble, or the opening words, of the Principal Act that we started off from. I do not know whether the Supreme Court has been busy on that kind of situation. On this question of recovery of expenses, when we are facing into this type of situation, and many others like them, it is terribly important to get this section right. If there is anything wrong with adding a few words a few hours do not make that much difference to get it right if it can be strengthened in any way by a requirement that such an order shall not first be made without the person in question being given an opportunity to make his case as to why it should not be made against him.

Mr. D. Andrews: It is funny that the Senator should raise this point, because I raised this very point with the people who came to me with this Bill in the first instance and I was assured by them that, in fact, the Bill is watertight in regard to the point the Senator has raised. As I have already mentioned, there is, in fact a constitutional presumption in relation to post-1937 statutes, that the court will act in accordance with constitutional justice. They would not award costs, for example, in the absence of, as the Senator said, a body corporate or a person.

Mr. Alexis FitzGerald: This is not a court.

Mr. D. Andrews: I appreciate that, but there is the presumption that they will act in the manner I have outlined. I might also remind the Senator that, whilst he makes the point about the costs and the awarding of costs, the question of costs arises in the 1979 Bill and there is no mention whatever of it in the 1921 Act. All I can do is express the view that I raised the same point and that, having raised it, I had to be [72] satisfied on it. The information and explanations I received were as I have articulated in my Second Stage speech. I accept full responsibility and I will be the first to apologise to the Senator if the situation occurs which he envisages. I do not think the exta words are necessary.

Mr. Alexis FitzGerald: I hope the Minister is right.

Mr. D. Andrews: I hope I am right also.

Question put and agreed to.

Section 7 agreed to.

Title agreed to.

Bill reported with amendments, received for final consideration and passed.