Paying for tribunals
Despite exceptional delays caused, in most cases, by court challenges to their competence and authority, tribunals of inquiry have done much of what they were asked to do by the Oireachtas. They investigated allegations of political and commercial corruption and found them to be true. New legislation dealing with white-collar crime, corruption and bribery has been agreed in Cabinet. Nobody can be satisfied, however, that matters of “urgent public importance” have taken up to 15 years to resolve.
The financial costs of the Flood/Mahon and Moriarty tribunals are only now emerging and they are expected to greatly exceed earlier estimates. An overall figure of €400 million has been mentioned, with third-party legal costs likely to surpass €100 million. Certain charges will be justified, even as legal bills are successfully challenged. That winnowing process is to be welcomed at a time of continuing austerity and financial crises. If public confidence is to be restored in traditional forms of authority, however, it is vital that those individuals who engaged in, or attempted to conceal, corrupt practices should not escape censure.
Under the Tribunal of Inquiry Act, legal costs may be withheld where there is evidence of “non-co-operation” on behalf of a witness. It is also an offence for a witness to give evidence they know to be false or do not believe to be true. A criminal prosecution in the latter case would require a Garda investigation and proof “beyond a reasonable doubt”. Such prosecutions have not arisen. Findings of corruption against two directors of Joseph Murphy Structural Engineers by the Flood tribunal did, however, lead to them being refused their legal costs on the grounds they had “obstructed and hindered” the tribunal.
An appeal to the Supreme Court against this decision was successful on the grounds that hindering and obstructing was a criminal offence over which the tribunal had no authority. The withholding of costs should not have been linked to findings of corruption, the court found, and the directors should have been given notice of the intended ruling. The judges did not say what would constitute “non-cooperation”.
Two years have passed since that judgment was delivered. Tribunals have had adequate notice of what is now required in terms of procedure and evidence of “non-co-operation” if legal costs are to be successfully withheld from those wealthy individuals they found to be corrupt. The prospect of criminal prosecutions being initiated appears remote. Great damage was done to Ireland’s international reputation and to public confidence in business and politics during the long years of tribunal investigations. The withholding of legal costs from those at the heart of that carnival of sleaze would represent a minimal penalty.