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Monday, 31st May 2004

In the course of a recent hearing, the legal representative of an applicant, without notice, submitted that the solicitor for the Board was not entitled to ask the applicant questions in relation to matters raised by the application for redress.  The basis of the submission was that while section 10(13) of the Residential Institutions Redress Act, 2002 (hereafter 'the Act') provides that 'an applicant … may be represented by counsel or solicitor', section 10(14) provides that 'an applicant … may be asked questions by the Board or by counsel for the Board or by both' (emphasis added).

The Board adjourned the hearing to consider this matter and, having done so, rejected this submission for the following reasons.

The starting point for such a consideration must be the recognition that since 1971 (Courts Act, 1971 S.17), solicitors have been given a right of audience in all courts of law.  It would be strange, to say the least, if a solicitor has a right of audience in the Supreme Court and the High Court, but not in the Redress Board.  While it is open to the legislature to modify this position in respect of a body such as the Redress Board it would be reasonable to assume that, as it would be a departure from long established public policy, such a restriction, if intended, would be expressed in a clear and unambiguous manner.  The Board is satisfied that the legislation falls far short of setting out the restriction alleged.

As with all statutes the Residential Institutions Redress Act 2002 is not entirely internally self-descriptive.  Its provisions must be interpreted by those charged with its operation.  A good example is that the word 'counsel' is not defined for the purposes of the Act. This Board has interpreted this as prima facie including practicing barristers.  Other definitions could also be identified. However, the word counsel' does not appear to be used consistently in the Act.   The phrase 'counsel or solicitor' is used in some provisions, and there are other sections in which the word 'counsel' alone appears but where the context appears to connote both barristers and solicitors.  This most significantly occurs as set out below.

The Act provides in section 10(13) that an applicant may be represented by a counsel or solicitor' while Section 10(14) deals with the Board's counsel asking questions and Section 11(2) refers to the right of the Board to employ and use counsel.  Neither of these Sections mention solicitor in that context.  This on first reading may appear to suggest that the Board must use counsel rather than a solicitor for these tasks.

However to assess the real meaning of sections 10 (14) and 11(2) consideration must also be given to section 11(6) of the Act which provides that 'the Board may, in addition to hearing counsel for an applicant, in respect of any matter before it, seek the assistance of counsel appointed by the Board in relation to any matter which it regards as necessary'.   If the narrow meaning of counsel is used in this context i.e. the word 'counsel' when used alone is taken to exclude solicitors, this would mean that while an applicant is granted the right under section 10(13) to be represented before the Board by a solicitor, that solicitor is not entitled (under section 11(6)) to be heard by the Board in respect of any matter before it.  Such an absurdity cannot have been the intention of the Oireachtas. Thus it is clear that for the purposes of the Act counsel' in the context of the applicant must include solicitor.  To ascribe a different meaning to the same word counsel' in the context of those appearing for the Board would appear to be wholly inappropriate.

A further difficulty in relation to the right of audience is raised by the wording of section 11(8) (d) of the Act, which appears to allow a relevant person, in an appropriate case, to be asked questions by an applicant's 'legal or other representative' – that is, by a person who is neither a barrister nor a solicitor. 

Furthermore, the Board has concluded that it would be inappropriate to approach the interpretation of section 10 or section 11 of the Act in the manner suggested, but rather to seek to give effect to the stated purposes of the redress scheme.  Approached in that way an anomaly is all the more unlikely in the particular context of the Act, which includes a number of provisions requiring the Board to adopt procedures which are informal – see especially sections 11(3) and 14(12).  Section 5(1)(d) of the Act in particular requires the Board to 'ensure, in so far as is practicable, that hearings are conducted as informally as possible having regard to all the circumstances'. Sections 11(3) and 14(12) also give the Board a wide discretion to determine its own procedures. 

Accordingly, the Board is of the view that it is entitled to appoint barristers and solicitors to assist it in the performance of any of its functions, including the conduct of a hearing, unless the Act specifically prohibits it from doing so.  The Board is further fortified in its interpretation in that there does not appear to the Board to be any such prohibition in the Act – all that section 10(14) provides is that the applicant 'may' be asked questions by counsel for the Board.  The provision is therefore, in the view of the Board, permissive rather than restrictive.  The Board is of the view that the purpose of the various provisions in the Act relating to representation is to remove any doubt as to the right of parties to full legal representation and that the provisions are drafted so as to be inclusive rather than exclusive.

The Board also draws attention to section 5(4) (a) which provides that the Board 'may give directions for the purposes of exercising its functions under this Act'.  The Board exercised this power with regard to hearings with the publication in December 2002 of 'A Guide to the Redress Scheme under the Residential Institutions Redress Act, 2002', paragraph 76 of which states that 'an applicant … may be asked questions by the Board, by counsel or solicitor for the Board or … by the legal representative of a relevant person.'  In April 2003 the Board also published a 'Guide to Hearing Procedures' which states that 'the Board will normally be represented by either a solicitor or counsel at the hearing …'.  In so directing, the Board was acting within the scope not just of the Act, but also of the Residential Institutions Redress Act, 2002 (Miscellaneous Provisions) Regulations, 2002.  Paragraph 10 of these Regulations, made under section 11(13) of the Act, provides that 'Subject to sections 5(1) (d), 10(5) and 10(15) of the Act and these Regulations, the Board may determine the manner in which evidence is given to the Board concerning any matter arising from an application under that Act or the exercise of its functions under the Act'.

Accordingly, the direction given by the Board that an applicant may be questioned at a hearing, by a barrister or solicitor for the Board, remains in force.

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