Matters of 'urgent public concern' require a more urgent method of investigation, writes Colm Keena
THE LAW term comes to an end this week and up in Dublin Castle the barristers working for the Mahon and Moriarty tribunals are facing into what is surely the tribunals' last summer break.
By this time next year, one, if not both, of the tribunals may have issued their reports and the only item of business remaining will be the payment of third party costs, including legal costs, accumulated in the period since the tribunals were first established 11 years ago.
However, making predictions about when a tribunal is likely to finish its business and issue its report is a vain pursuit. Given that they infringe on people's reputations, that many of the people affected are hugely wealthy, and that the taxpayer is likely to pick up most of the legal costs, tribunals have an in-built propensity to attract complications, legal submissions and High Court challenges.
It would be a foolish observer who would say we've seen the last of the court challenges. When the bills are sent in it is likely the total amount due will be equal to the €440 million in savings the Government is attempting to make in the public finances. It may be well in excess of that.
Given the time it has taken the tribunals - set up in 1997 to investigate matters of urgent public importance - to get their business done, it is unlikely that we'll be seeing many more of them in the near term.
Apart from their in-built propensity for complication, the unacceptable duration of the two Dublin Castle tribunals is primarily the result of the terms of reference they were given by the Oireachtas. More concise terms of reference would have led to speedier tribunals.
Oddly, the tribunals have served to do the opposite of what they were set up to do. Instead of investigating and reporting on matters of urgent public concern, they have served to park many issues that were once matters of urgent public concern, and have thereby neutralised them.
Fianna Fáil in particular has reason to be thankful to the tribunals it set up while in government. Back in 1997 it was hard not to think that the revelations emerging about the late Charles Haughey, and his misuse of party and public funds, would lead to a severe row in that party. Instead of that debate occurring, the matter was sent up to Dublin Castle and disappeared into the pages of history.
But apart from cost, slowness, and general efficacy, there is another reason for being wary of setting up tribunals in the future. It is the whole issue of the right of the citizen to be left alone. The issue was reviewed in a paper, Tribunals and the Right to Privacy, published in 1999 in the Bar Review and written by the current Attorney General, Paul Gallagher SC. Gallagher queried the height of the threshold that exists before evidence is heard in public by tribunals, and contrasted the ease with which people's privacy is interfered with the importance of privacy in a civilised society. He argued that more could be done to protect privacy, without interfering with the efficacy of the tribunals. Tribunals could do more of their work in private, rooting out allegations for which insufficient evidence exists, before they were allowed into the public domain.
"In its frenzy to root out supposed wrongdoing and in its desire to reintroduce a modern-day version of the medieval village stock where supposed and actual wrongdoers can be pelted with our collective venom and distaste through the mouths of tribunal counsel, society should not lose sight of the larger and more fundamental issues involved," he wrote. "The twin objectives of rooting out wrongdoing and respect of the right to privacy are not incompatible."
At the end of his piece he quoted from a dissenting judgment from the US Supreme Court, in Olmstead v United States. The 1928 case involved evidence secured through the tapping of the phones of criminals involved in circumventing alcohol prohibition laws: "The makers of our Constitution . . . recognised the significance of a man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone - the most comprehensive of rights and the right most valued by civilised men."
Gallagher queried whether the price society pays for the intrusions tribunals make into people's privacy is too high; he asserted that the intrusion is certainly too high a price to pay when the intrusion could be avoided without preventing tribunals doing their work.
There are a lot of people sore with how they've been treated by tribunals over the past 11 years, though their plight doesn't generally excite much public sympathy.
Among those who feel unfairly treated is Hazel Lawlor, the widow of the late Liam Lawlor, who yesterday lost her case against the Mahon tribunal in the High Court. Ms Lawlor was seeking to have the court rule that tribunals should apply a higher standard of proof - beyond reasonable doubt - to the one they currently use, the balance of probabilities, or the civil standard of proof. She argued that this should be so because of the severe effect of a negative finding in a tribunal report on the person concerned. The court did not agree with her.
Denis O'Brien and others argued last year that the Moriarty tribunal should use a heightened civil standard when coming to its conclusions. The judge said he would use the standard he used in his first report, which concentrated on matters concerning Haughey. In that report the judge described his findings as an expression of his opinion. "The tribunal sees no reason to depart from the approach adopted in the first [report], that is, the civil standard, a flexible approach, proportionate to the nature and gravity of the matters arising."
Before the Mahon tribunal rose for the summer on Wednesday, its chairman, Judge Alan Mahon, said he expected the tribunal would finish hearing evidence by October. The Moriarty tribunal sat, unexpectedly, for three days earlier this year, but really finished its public hearings in June of last year.
The Government has told the departments to which the tribunals report that, once public hearings are over, tribunal legal teams, including the €2,700-a-day senior counsel, should be let go.
When chairman Mr Justice Michael Moriarty completes his report, he will send excerpts of the draft findings to the various affected parties before finalising it. A High Court challenge to the draft findings, or to the legality of the standard of proof and/or rules of evidence applied has to be considered likely. Something similar could happen with the Mahon report.
The Mahon tribunal is scheduled to resume hearings on September 15th, when Bertie Ahern returns to the witness box to be asked about matters to do with the Quarryvale project. The developer of that project, Owen O'Callaghan, will then complete his evidence, after which Hazel Lawlor and her son Niall are to give theirs; and lobbyist Frank Dunlop is to be cross examined. A few sittings to do with the Cloghran lands module will complete the hearings. The report should be out by 2009.
The tribunal era is in endgame but scandals and suspected corruption will continue to be part of Irish public life, just as they are part of life in every open democracy. And so society will continue to need some method for investigating matters of urgent public concern.
Colm Keena is Public Affairs Correspondent of The Irish Times and has covered the Moriarty and Mahon tribunals