IRELAND 21 September 2018
Special Report 63: Tribunals of Inquiry Summary
Summary of Findings
The report examined the timescale, cost and efficiency of three major tribunals that are nearing completion. The tribunals examined were the Mahon, Morris and Moriarty Tribunals.
Timescale of Tribunals
Based on current information the duration of the Mahon and Moriarty Tribunals will be 12 years while the duration of the Morris Tribunal will be seven years. These tribunals were projected to last only a fraction of that time at their inception. Their extended timescale was affected by the nature of the investigations, adversarial procedures and practice and legal challenges in many instances. Apart from this, the duration of these tribunals was variously attributed to
- wide terms of reference and a broadening of scope as the work of the tribunals progressed
- the unavailability of certain witnesses
- obstruction by or non-cooperation of witnesses
- extended cross-examination in the course of hearings
- certain procedural shortcomings which resulted in orders being quashed and requiring re- work or additional work by the tribunal.
There is scope for further delay in circumstances where a tribunal chooses to circulate its draft report for clearance prior to publication.
The report makes a range of suggestions for the more efficient conduct of tribunals. Apart from having more focused terms of reference, there may be merit in limiting new lines of enquiry to instances where the tribunal has reported that it is satisfied that the cost and duration of those additional enquiries are likely to be justified by the relevance to the tribunal's terms of reference of the matters to be investigated. This together with the provision of periodic interim reports by each tribunal on its general progress would allow the Oireachtas to review the cost-justification of new lines of enquiry and the progress being achieved on the tribunal's core mandate.
Tribunals cannot impose penalties and their primary utility is to establish facts and thereby provide information to improve public administration. This might suggest that the design of tribunals take account of what would constitute a sufficiency of relevant and reliable information for this purpose. While it is recognised that ?court-type' procedure is necessary when a person's good name is in issue, evidence gathering procedures that mirror those in auditing or other investigation work might be appropriate and efficient for much of this work.
There also appeared to be some scope for the improvement of practice and procedure related to evidence gathering and the challenge of that evidence. Options include
- providing for the ?reading-in' of evidence already available in written form and not disputed
- providing for witness evidence to be delivered by sworn affidavit
- providing for the making of legal submissions in written form
- drafting an initial statement of facts based on statements and material discovered and isolating facts in contention for examination in a focused oral procedure involving witnesses.
Despite the provision for concurrent sittings in the case of the Mahon Tribunal there has been no recourse to this procedure. Notwithstanding this, there appears to be scope to use concurrent sittings where a tribunal has a number of members and where discrete issues can be identified. As well as this, the ultimate cost of representation could be curtailed by providing for jointly representing shared interests and/or limiting the funding of bodies or organisations whose primary function it is to protect and defend the same or similar interests.
Finally, since a primary purpose of the tribunal is to establish facts designed to allow public administrations to mitigate risks to good governance and remedy shortcomings in control of public programmes rather than hold individuals accountable (which is a matter for the courts) it would be worth considering whether efficiency could be improved by only proceeding to oral hearing in instances where a party after due notice asserts that their reputation or interests may be adversely affected.
Cost of Tribunals
It is recognised that, due to their investigatory nature, the cost of tribunals is difficult to estimate. Nonetheless, good financial management demands that mechanisms be established to make tribunal costs more predictable and transparent. One possible approach would be to require the production of a formal public statement of estimated costs, timescale and milestones, at all key stages, beginning with the tribunal's establishment. This statement could be subsequently updated to take account of significant developments or proposed new lines of enquiry.
Much of the support work at tribunals is done using counsel. There appears to be scope to achieve economies by
- using less expensive paralegal or professional staff for research and investigation work
- moving away from the ?exclusive attention' basis of hiring counsel and engaging counsel for discrete modules
- implementing a scheme of pre-determined fee rates for future tribunals which takes account of the certainty of tribunal work in determining those rates.
Third Party Representation and Related Costs
Third party costs represent the major portion of the cost of tribunals. These costs are awarded and their amount determined in retrospect.
While the process in other countries varies, application for legal fees to be met from the public purse is required prior to participation in the public inquiry process in Australia, Canada and the UK.
It would be worth exploring the feasibility of providing for the up-front grant of legal representation and determining its extent based on an application that gives reasons why a person considers he or she should be represented. The grant of representation might be limited to instances where a tribunal is satisfied that
- a person's evidence is likely to be relevant to its enquiries and/or
- a person's constitutional or legal rights are likely to be affected by the proceedings before the tribunal, and/or
- there are exceptional stated circumstances which warrant granting representation.
There is also a need to clarify the circumstances in which a tribunal may award costs by establishing criteria to guide the Chairman in determining whether or not to authorise the payment of costs. Criteria which might be set could include
- costs of representation should only be allowed as specified in a tribunal's original determination except in exceptional circumstances
- the award of costs should not exceed maximum amounts set by a designated Minister.
In circumstances where a person contributed to the duration of hearings by knowingly or recklessly providing false or misleading information or otherwise failed to provide appropriate cooperation, the existing statutory provision allowing costs to be awarded against that party for the benefit of the Exchequer, could also reduce the public cost of tribunals.
Likely Cost of Tribunals
The ultimate cost of the three tribunals examined is inherently difficult to estimate. However, assuming the tribunals conclude on the dates currently predicted
- administration costs will amount to between ?50 million and ?52 million
- tribunal legal teams will cost between ?84 million and ?87 million
- litigation will cost approximately ?4 million1
- third party costs could range from ?157 million to ?182 million based on the pattern of awards observed in the Morris and Mahon Tribunals.
As well as costs incurred on the administration of the tribunals, State respondent costs are projected to amount to some ?19 million while other State costs related mainly to facilities and judges salaries are estimated at approximately ?22 million.
Overall, the likely cost to the State of the three tribunals based on the pattern of costs experienced to date is estimated to be in the range of ?336 million to ?366 million.
It is important to emphasise that the foregoing are estimates which should be read in the light of the caveats and contingencies outlined in Chapter 2. The major area of uncertainty pertains to third party costs. In the case of those costs, there is a risk that, due to the extended timescale, their ultimate cost could rise for future settlements and awards by the Taxing Master. If the ratio of third party costs to direct costs experienced in the Beef Processing Tribunal was taken as a guide the ultimate cost could increase by a further ?68 million.
The State faces a considerable challenge to achieve predictability and financial control in the case of tribunals of inquiry which operate under the authority of the legislature without compromising their independent investigations or the constitutional rights of witnesses.
The recommendations outlined above and specified in detail in Chapter 3 of the report are presented as a range of options. However, it is recognised that these options will require detailed scrutiny and not all options will necessarily be compatible or legally feasible.
Legislation has been initiated in the Oireachtas designed to address a number of these issues.
1 No estimate has been included for possible future litigation costs.