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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(3) (May 2005) URL: http://www.bailii.org/ie/other/IELRC/2005/3(3).html Cite as: [2005] IELRC 73(3) |
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3. CHAPTER 3 TERMS OF REFERENCE
A Introduction
B Drafting Terms of Reference
(1) Tribunals of Inquiry (Evidence) Act 1921
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Oxford English Dictionary defines the word "definite" as an adjective meaning "clearly stated or decided; not vague or doubtful."
(2) Recent Practice Regarding the Drafting of Terms of Reference
3.06 In its Comparative Study into Parliamentary Inquiries and Tribunals of Inquiry, the Office of the Attorney General considered recent practice in the manner in which the terms of reference of inquiries are drafted.[1]
3.07 It identified nine distinct stages in the drafting process.
(i) A draft is prepared by the sponsoring department;
(ii) The draft is examined by the Office of the Attorney General;
(iii) Further consideration is given to the draft by the sponsoring department and Office of the Attorney General;
(iv) The draft is then considered by the Chief Whips;
(v) In certain cases, there may be consultation with certain interest groups;
(vi) Further consideration is given to the draft by the sponsoring Department and the Office of the Attorney General gives legal clearance;
(vii) The Government makes its decision on the terms of reference;
(viii) The Draft is put to both Houses of the Oireachtas where it may be subject to amendment;
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(ix) Resolutions passed containing the terms of reference by both Houses of the Oireachtas."[2]
3.08 The Office of the Attorney General concluded that in its experience the terms of reference become wider at each stage of that process, with the result that the subject matter of the inquiry may not be a definite matter.[3]
3.09 This would appear to be at variance with section 1(1) of the 1921 Act, which arguably envisages that terms of reference should be clearly stated in order to be "definite." However, in Haughey v Moriarty[4] the Supreme Court, when faced with the argument that the terms of reference of the Moriarty Inquiry were too vague, concluded that they were not and added the caveat that even if they were too vague, the Tribunal itself would clarify matters when it gave its interpretation.
(3) Consultation Paper Recommendation
3.10 In the Consultation Paper the Commission stressed the need for precision in the drafting of the terms of reference. It proposed the introduction of a two-stage approach to the drafting of terms of reference. At the first stage, the decision to establish an inquiry would be taken, broad terms of reference would be fixed, and the matter would then be handed over to those charged with running the inquiry. These persons would then examine the terms of reference, conduct something akin to a feasibility study and then submit its comments and recommendations relating to the draft terms of reference together with any suggestions or amendments. The Oireachtas and Government would then consider those proposals and incorporate them if they so wished into the final terms of reference.[5]
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(4) Discussion
(a) Commissions of Investigation Act 2004
3.12 The 2004 Act envisages a two-stage approach to the drafting of terms of reference. The order establishing the commission of investigation will designate a Specified Minister to set the terms of reference.[6] In the absence of such a designation the Government will set the terms of reference.[7] The specified Minister, or the Government, may then consult with "any persons" prior to the setting of the terms of reference. [8]
3.13 The 2004 Act imposes an obligation on those drafting the terms of reference to be as precise as possible.[9] The terms of reference must set out as clearly and as accurately as possible the events, activities, circumstances, systems, practices or procedures to be investigated, together with the relevant dates, locations and individuals involved.[10] In addition, the Minister responsible for the operation of the commission must ensure that as soon as possible after the terms of reference are set an accompanying statement is prepared containing an estimate of the costs of the commission and the length of time it will take. This must be published as soon as possible after the terms of reference are set in Iris Oifigiúil and such other publications as the Minister considers appropriate.[11]
(b) United Kingdom
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2005 Act does not require the Minister to consult with any other individuals or organisations, but they can be consulted if the Minister considers it appropriate in the particular circumstances.[12] The terms of reference must specify the matters to which the inquiry relates, any particular matters as to which the inquiry panel is to determine the facts, whether the inquiry is to make recommendations, or any other matters which the Minister may specify.
(c) New Zealand
3.15 In New Zealand, the Department of Internal Affairs also stressed the need for precision in drafting the terms of reference for commissions of inquiry.[13] It took the view that the importance of the terms of reference cannot be overstated. It noted that if there is any confusion over their meaning then an inquiry could deliver up findings that do not answer the original problem. In addition, it noted that if the terms are too narrow then an inquiry might not be able to address all matters relevant to the issue. If the terms were too wide, the inquiry could take a very long time and come up with a large number of findings that the Government would be unable to implement.
3.16 It stated that: "Ideally, Terms of Reference should:
• Address the fundamental issues causing the wider anxiety;
• Address the concerns of all parties likely to have an interest in the inquiry;
• Allow scope for the inquiry to inquire into whatever areas it sees fit in order to get a complete picture of the facts;
• Avoid directing the inquiry to investigate issues of criminal conduct;
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• Be consistent within themselves and with the instructions contained in the rest of the Warrant (especially the provisions regarding secrecy and powers);
• Be consistent with natural justice;
• Not contain any implied conclusions;
• Be precise, clear and unambiguous in their meaning."[14]
(5) Recommendation
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tribunal of inquiry, in consultation with the sponsoring Minister and such other persons or bodies as the tribunal considers appropriate. At the second stage, the draft terms of reference should be submitted to the Oireachtas for approval. In addition, a memorandum setting out the length of time the proposed inquiry will take and, subject to the Commission's recommendation at paragraph 7.36 below, the anticipated cost of the inquiry should accompany the terms of reference.
7.36 the anticipated cost of the inquiry.
C Amending Terms of Reference
(1) Tribunals of Inquiry (Evidence) Act 1921, as amended
3.22 The procedure for amending the terms of reference of a tribunal of inquiry is governed by Section 1A of the 1921 Act, as amended.[15]
(a) The tribunal has consented to the proposed amendment, following consultation between the
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tribunal and the Attorney General on behalf of the Minister, or
(b) The tribunal has requested the amendment
(2) Without prejudice to the generality of subsection (1), the tribunal shall not consent to or request an amendment to an instrument to which this section applies where it is satisfied that such amendment would prejudice the legal rights of any person who has co-operated with or provided information to the tribunal under its terms of reference."
3.24 In the Consultation Paper, the Commission noted that section 1A of the 1921 Act was inserted to allow a variation in the terms of reference of the Planning Tribunal, and that its effect is that variations may only occur with the agreement of the tribunal, the Oireachtas and the relevant Minister.[16]
(2) Consultation Paper Recommendation
3.25 In the Consultation Paper, the Commission proposed that section 1A should be amended in two respects. First, it recommended that Section 1A(2) should be amended by substituting the phrase "who is unduly affected by the proceedings of the tribunal" for the phrase "any person who has cooperated with or provided information to the tribunal." This change was recommended because the Commission felt that section 1A is too restrictive in its ambit.[17] The second change recommended was to impose an obligation on the tribunal to consider whether it requires an amendment within four weeks of its establishment.[18]
(3) Discussion
(a) Commissions of Investigation Act 2004
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proposed amendments clarify, limit or extend the scope of its investigation.[19] A commission is expressly prohibited from consenting to a request for an amendment of its terms of reference where it considers that the proposed amendment would prejudice the legal rights of any person who has cooperated with or provided information to, a commission.[20]
3.27 Where the terms of reference are amended, the specified Minister must ensure that the statement accompanying the terms of reference is revised where the previous estimate of costs and duration are no longer appropriate. The accompanying statement must also be revised where the terms of reference are not amended but the commission forms the view that the time frame ought to be revised.[21] Furthermore, in both situations, the specified Minister must cause the revised accompanying statement to be published in Iris Oifigiúil and such other publications, as he or she considers appropriate.[22]
(b) United Kingdom
(c) Canada
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(d) Australia
(4) Recommendation
• The Sponsoring Minister and the Tribunal should be given the power to request an amendment of the terms of reference. Where the person seeking the amendment is the Sponsoring Minister, the consent of the tribunal should in general be sought. The requirement of generality is to prevent the discretion of the Oireachtas appearing to be subject to a decision of a tribunal obtained where the proposed amendments clarify, limit or extend the scope of its inquiry.
• The tribunal should be expressly prohibited from either seeking or consenting to a request for an amendment where it takes the view that the proposed amendment would prejudice the legal rights of any person who is adversely affected by the proceedings of the tribunal.
• The Oireachtas must consent to the amendment by means of a Resolution of both Houses.
• Where the terms of reference are amended the Sponsoring Minister must ensure that the statement accompanying the terms of reference is revised where the previous estimate of costs and duration is no longer appropriate. In addition, the Sponsoring Minister must cause the revised accompanying
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statement to be published in Iris Oifigiúil and such other publication, as he or she considers appropriate.
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[BLANK]
Note 1 Comparative Study into Parliamentary Inquiries and Tribunals of Inquiry (Pn 9796). [Back] Note 2 Comparative Study into Parliamentary Inquiries and Tribunals of Inquiry (Pn 9796) at 26. See the Consultation Paper at paragraph 5.51. [Back] Note 5 See the Consultation Paper at paragraph 5.57. [Back] Note 6 Section 4(1) of the Commissions of Investigation Act 2004. [Back] Note 7 Section 4(2) of the Commissions of Investigation Act 2004 [Back] Note 8 Section 4(3) of the Commissions of Investigation Act 2004. [Back] Note 9 Section 5(1) of the Inquiries Act 2005. [Back] Note 10 Section 5(1) of the Inquiries Act 2005. [Back] Note 11 Section 5(2)(b) of the Inquiries Act 2005. [Back] Note 12 Section 5(4) of the Inquiries Act 2005. [Back] Note 13 Department of Internal Affairs Setting up and Running Commissions of Inquiry (2001). [Back] Note 14 Department of Internal Affairs Setting up and Running Commissions of Inquiry (2001) at 28. [Back] Note 15 As inserted by section 1(1) of the Tribunals of Inquiry (Evidence) (Amendment) Act 1998. [Back] Note 16 See the Consultation Paper at paragraph 5.62. [Back] Note 17 See the Consultation Paper at paragraph 5.61 [Back] Note 18 See the Consultation Paper at paragraph 5.66 [Back] Note 19 Section 6(1) of the Commissions of Investigation Act 2004. [Back] Note 20 Section 6(2) of the Commissions of Investigation Act 2004. [Back] Note 21 Section 6(6) of the Commissions of Investigation Act 2004. [Back] Note 22 Section 6(7) of the Commissions of Investigation Act 2004. [Back]