Commissions of Investigation Act 2004

PART 1 Preliminary Matters

1. Short title.

1.— This Act may be cited as the Commissions of Investigation Act 2004.

2. Interpretation.

2.—(1) In this Act, except where the context otherwise requires—

“authorised person” has the meaning given by section 26;

“chairperson”, in relation to a commission, means the person appointed under section 7(5) as the chairperson of the commission;

“commission” means a commission of investigation established under this Act;

“Court” means the High Court;

“document” includes any book, record or other written or printed material in any form, including any information stored, maintained or preserved by means of any mechanical or electronic device, whether or not stored, maintained or preserved in a legible form;

“evidence” includes any expression, orally, in writing or otherwise, of an opinion, belief or intention;

“investigation” means an investigation conducted by a commission in accordance with its terms of reference under this Act;

“legal costs” means fees, disbursements, charges and expenses included in a bill of costs in respect of a barrister or solicitor;

“legal representative” means a barrister or solicitor;

“premises” includes any building, dwelling, temporary construction, vehicle, ship or aircraft;

“specified Minister”, in relation to a commission, means the Minister specified under section 3(3)(b) in the order establishing the commission;

“tribunal” means a tribunal to which the Tribunals of Inquiry (Evidence) Acts 1921 to 2004 apply.

(2) For the purposes of this Act, a document in the power of a body corporate or an unincorporated body of any kind is considered, in the absence of evidence to the contrary, to be also in the power of any individual who, because of his or her functions or position within the body corporate or the unincorporated body, as the case may be, can reasonably be expected to have control over the document.

(3) In this Act—

(a) a reference to a section is to a section of this Act, unless it is indicated that reference to some other enactment is intended,

(b) a reference to a subsection or paragraph is to the subsection or paragraph of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended, and

(c) a reference to any other enactment is to that enactment as amended by or under any other enactment, including this Act, unless the context otherwise requires.

PART 2 Establishment, Membership and Independence of Commissions

3. Establishment of commissions.

3.—(1) Following a proposal made by a Minister with the approval of the Minister for Finance, the Government may, by order, establish a commission to—

(a) investigate any matter considered by the Government to be of significant public concern, and

(b) make any reports required under this Act in relation to its investigation.

(2) An order may be made under this section only if—

(a) a draft of the proposed order and a statement of the reasons for establishing the commission have been laid before the Houses of the Oireachtas, and

(b) a resolution approving the draft has been passed by each House.

(3) The order establishing a commission shall specify—

(a) the matter that is considered by the Government to be of significant public concern and that is to be investigated by the commission, and

(b) the Minister responsible for overseeing administrative matters relating to the establishment of the commission, for receiving its reports and for performing any other functions given to him or her under this Act.

(4) A commission may be established under this section even if the matter considered by the Government to be of significant public concern arose before the passing of this Act.

4. How terms of reference are to be set.

4.—(1) The order establishing a commission may authorise the specified Minister to set the commission's terms of reference.

(2) If the order establishing a commission does not authorise the specified Minister to set its terms of reference, they may be set by the Government.

(3) Before setting a commission’s terms of reference, the specified Minister or the Government, as the case may be, may consult with any persons.

5. Content of terms of reference and accompanying statement.

5.—(1) A commission's terms of reference shall, as appropriate and to the extent possible, specify the events, activities, circumstances, systems, practices or procedures to be investigated, including—

(a) the dates on which or the periods during which the events occurred, the activities were undertaken, the circumstances arose or the systems, practices or procedures were in operation,

(b) the location or area within the State where the events occurred, the activities were undertaken, the circumstances arose or the systems, practices or procedures were in operation, and

(c) the persons to whom or which those events, activities or circumstances relate or whose activities, systems, practices or procedures are to be investigated,

with a view to ensuring that the scope of the investigation into any matter referred to the commission is described precisely.

(2) The specified Minister shall ensure—

(a) that an accompanying statement is prepared containing—

(i) an estimate of the costs (including legal costs) to be incurred by the commission in conducting the investigation and preparing its reports, and

(ii) a time frame for the submission of the commission's final report to the specified Minister, and

(b) that, as soon as possible after the terms of reference are set, they are published with the statement in Iris Oifigiúil and in such newspapers or other publications as the Minister considers appropriate.

6. Amendment of terms of reference and accompanying statement.

6.—(1) The power to set a commission’s terms of reference includes the power to amend, at any time before the submission of the commission's final report, those terms with the consent or at the request of the commission for the purpose of clarifying, limiting or extending the scope of its investigation.

(2) A commission may not consent to or request an amendment of its terms of reference if satisfied that the proposed amendment would prejudice the legal rights of any person who has co-operated with or provided information to the commission in the investigation.

(3) No consent or request is required for the amendment of a commission’s terms of reference under section 44(2).

(4) The requirements of section 5(1) apply with any necessary modifications to the amendment of a commission’s terms of reference as it applies to the setting of those terms.

(5) The specified Minister shall ensure that the statement accompanying a commission’s terms of reference is revised if, as a consequence of an amendment of those terms under this section or section 44(2), either or both of the following contents of the statement are no longer appropriate:

(a) the estimate of the costs (including legal costs) to be incurred by the commission in conducting the investigation and preparing its reports;

(b) the time frame for the submission of the commission’s final report.

(6) Even though a commission’s terms of reference are not amended, the specified Minister may, at the commission’s request, revise the time frame for the submission of its final report to the extent consistent with the objective of having the investigation conducted and the report submitted as expeditiously as a proper consideration of the matter referred to the commission permits.

(7) The specified Minister shall ensure that, as soon as possible after a commission’s terms of reference are amended or the accompanying statement is revised or both of those things are done, the amended terms, the revised statement or both, as the case may be, are published in—

(a) Iris Oifigiúil, and

(b) each newspaper or other publication in which the original terms were published under section 5(2)(b).

7. Membership.

7.—(1) A commission may consist of one or more than one member.

(2) Each member of a commission is to be appointed as follows:

(a) by the specified Minister, if authorised to do so by the order establishing the commission;

(b) by the Government, in any other case.

(3) Appointments may be made to a commission at any time, including during the course of its investigation.

(4) Before appointing a person to be a member of a commission, the appointing authority (the specified Minister or the Government) shall be satisfied that, having regard to the subject matter of the investigation, the person has the appropriate experience, qualifications, training or expertise.

(5) Where more than one member is appointed to a commission, the appointing authority shall designate one of the members as the chairperson.

(6) If a commission consists of more than one member—

(a) a decision of a majority of its members on any matter is the commission's decision, and

(b) in the case of an equal division among the members as to a decision to be made, the chairperson's decision on the matter is the commission's decision.

(7) If the chairperson is for any reason unable to continue to act as chairperson, the appointing authority may designate another member of the commission as chairperson.

(8) An appointment under subsection (3) or a designation under subsection (7) made during the course of an investigation by a commission does not affect decisions made or actions taken by the commission before the appointment or designation.

(9) A member of a commission who is unable to act as a member, whether temporarily or for the remainder of the investigation, is while unable to act deemed not to be a member of the commission.

(10) A commission may act or continue to act despite one or more than one vacancy among its members if satisfied that the legal rights of any person affected by its investigation would not be unduly prejudiced by doing so.

8. Advice and assistance.

8.—(1) 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—

(a) 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, and

(b) determine the terms and conditions of their appointment.

(2) The specified Minister may direct that a competitive tendering process be used in selecting persons with relevant qualifications and experience (including barristers and solicitors) for appointment under subsection (1).

(3) The specified Minister may prepare guidelines that are to be followed if a direction is given to use a competitive tendering process.

(4) Before directing that a competitive tendering process be used, the specified Minister shall consult with the chairperson of the commission concerned or, if the commission consists of only one member, with the sole member.

(5) In considering whether to direct that a competitive tendering process be used, the specified Minister may have regard to—

(a) the subject matter of investigation,

(b) the time frame for the submission of the commission's final report to the specified Minister,

(c) the qualifications and experience required for appointment,

(d) the functions to be performed by the persons,

(e) the likely costs of the performance of those functions, and

(f) any other relevant factor.

(6) Subject to subsection (8), the chairperson of a commission or, if the commission consists of only one member, the sole member may specify the functions to be performed by persons appointed under this section.

(7) The functions specified under subsection (6) may include—

(a) interviewing persons for the purpose of assessing the relevance or evidential value of information or documents they wish to provide to the commission,

(b) interviewing persons as to the evidence they propose to give to the commission,

(c) recording, in writing or otherwise, statements given and answers made by persons while being interviewed,

(d) reporting to the commission on the results of those interviews,

(e) requesting persons to provide the commission with written statements concerning any matter relevant for the purposes of the investigation and examining statements provided in response to the requests, and

(f) providing the commission with any other advice or assistance required in relation to the investigation or the preparation of its reports.

(8) A person appointed under this section may not administer oaths or take affirmations, but, if authorised by the commission to do so, may request a person interviewed as described in subsection (7) by him or her to sign a record of a statement made or answer given by that person during the interview.

(9) When requesting that a record of a statement or answer be signed under subsection (8), a person appointed under this section shall inform the person to whom the request is made of the commission's powers—

(a) under section 16(1)(h) to give a direction in relation to the statement or answer, and

(b) under section 17 to direct payment of costs for failure to comply with a direction under section 16(1)(h).

9. Independence.

9.—A commission shall be independent in the performance of its functions.

PART 3 Investigations and Related Matters

10. Conduct of investigations.

10.—(1) A commission may, subject to this Act and the commission's rules and procedures, conduct its investigation in the manner that it considers appropriate in the circumstances of the case.

(2) In conducting an investigation, a commission shall, to the greatest possible extent consistent with its duties under this Act—

(a) seek the voluntary co-operation of persons whose evidence is desired by the commission in relation to any matter within its terms of reference, and

(b) facilitate such co-operation.

(3) Subsection (2) is not to be taken to limit in any way the powers given by sections 16, 17 and 28 to a commission or a member of a commission.

(4) A commission shall conduct its investigation as expeditiously as a proper consideration of the matter referred to the commission permits.

11. In general evidence to be given in private.

11.—(1) A commission shall conduct its investigation in private unless—

(a) a witness requests that all or part of his or her evidence be heard in public and the commission grants the request, or

(b) the commission is satisfied that it is desirable in the interests of both the investigation and fair procedures to hear all or part of the evidence of a witness in public.

(2) Where the evidence of a witness is heard in private—

(a) the commission may give directions as to the persons who may be present while the evidence is heard,

(b) legal representatives of persons other than the witness may be present only if the commission—

(i) is satisfied that their presence would be in keeping with the purposes of the investigation and would be in the interests of fair procedures, and

(ii) directs that they be allowed to be present,

(c) the witness may be cross examined by or on behalf of any person only if the commission so directs, and

(d) any member of the commission or a person who has been appointed under section 8 and is authorised by the commission to do so may, orally or by written interrogatories, examine the witness on his or her evidence.

(3) A person (including a member of the commission) shall not disclose or publish any evidence given or the contents of any document produced by a witness while giving evidence in private, except—

(a) as directed by a court,

(b) to the extent necessary for the purposes of section 12,

(c) to the extent otherwise necessary in the interests of fair procedures and then only with the written consent of the chairperson or, if the commission consists of only one member, the sole member, or

(d) to a tribunal in accordance with section 45.

(4) Subsection (3) is not to be taken to prohibit the publication in a report under this Act of any facts established by a commission on the basis of evidence received in private.

(5) A person who contravenes subsection (3) is guilty of an offence.

12. Duty to disclose substance of evidence to other witnesses, etc., and to give them a chance to comment.

12.—(1) Subject to subsection (2), a commission shall disclose to a person—

(a) who is directed to attend as a witness before the commission,

(b) who attends voluntarily to give evidence to the commission, or

(c) about whom evidence is given to the commission,

the substance of any evidence in its possession that, in its opinion, the person should be aware of for the purposes of the evidence that person may give or has given to the commission.

(2) Subsection (1) does not require the disclosure of the source of any evidence given or document produced by a witness while giving evidence in private under section 11, unless the commission considers that, in view of the purposes of the investigation or in the interests of fair procedures, the source should be disclosed.

(3) A commission shall give a person to whom it discloses the substance of evidence under subsection (1) an opportunity to comment by written or oral submissions on the evidence.

13. Duty to inform witnesses of commissions' powers and to advise them of their own rights and obligations.

13.—(1) Before a person gives evidence to a commission, whether voluntarily or on being directed by it to do so, the commission shall give the person a written statement—

(a) specifying the commission's powers under sections 16, 17 and 28, and

(b) indicating that, if the person does not voluntarily co-operate with the commission or withdraws co-operation, the commission will exercise any of those powers as it considers necessary.