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Commissions of Investigation Act 2004
Establishment, Membership and Independence of Commissions
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.
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.
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.
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. —(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.
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
9. —A commission shall be independent in the performance of its functions.