Tribunal may lack legal bite

In the wake of the beef tribunal, David Gwynn Morgan is pessimistic as to whether the outcome of the blood transfusion tribunal will include any action to prosecute those who may be responsible

By DAVID GWYNN MORGAN

ESPECIALLY in the light of the beef tribunal, the two questions which need to be asked about the blood transfusion tribunal are: what good will it do, and what will it cost?

On the first query, there are two inter related points of which the first is: will it get to the bottom of what happened and why? This query, which is probably the most important, was considered on this page on Wednesday by Fintan O'Toole and so I shall concentrate on the second issue. This is whether the outcome of the tribunal is likely to include any prosecution of, or even civil claim against, anyone who may be found responsible.

I am pessimistic, even if the report points the finger at any person or persons - and the former Chief Justice's previous report on the British soccer hooligan episode was rather anodyne - whether any further action will be taken against them.

Consider the beef tribunal. Here, although the Goodman organisation was forced to pay some tax, the only person prosecuted was the journalist whose investigation had initiated the tribunal's work.

As another example, we know that what followed from the Stardust tribunal was not any claim against the owner of the discotheque but rather a tailor made compensation tribunal, funded by public money, along the lines of the present hepatitis C compensation tribunal.

There are two reasons why I anticipate that there will be no sanctions for any culprits. The first of these is that, as far as criminal proceedings are concerned, we know that irrespective of whether a tribunal is involved or not, the Director of Public Prosecutions has been, slow to prosecute for white collar crime. As the late John Kelly once observed: does anyone think that a `much loved jockey like Lester Piggott would have been prosecuted in Ireland?

And, as regards civil claims, no one would think of prosecuting a private individual when the State is available, with its gorgeous deep pockets and the need to appear as a gentleman in all circumstances - witness the criticisms of the State's lawyers in the case brought by the late Mrs McCole.

The other reason legal consequences are unlikely is the feeling that, if there has been a widely reported investigation accompanied by prejudicial publicity, then it is unfair to bring subsequent proceedings. At a less articulate level, the feeling may be strong that the culprits have received a public pillorying, the public has been informed as to what has been going on, and enough is enough.

Incidentally, this discussion of subsequent proceedings naturally raises the question of how any civil action brought by any of the other hepatitis C victims will interact with the tribunal which has just been established. Presumably any court proceedings will be stayed while the tribunal is sitting. Thereafter, and depending upon its report, it is quite possible that there will be a comprehensive settlement.

IN the welter of condemnation that has fallen on Mr Noonan's head in the past few days, one ought to note that, although it has not been much used, the hepatitis C tribunal (an entirely different body from the tribunal of inquiry under discussion here) might well be regarded, not least from the victims' point of view, as a civilised and beneficial arrangement.

The advantage it bestowed on the victims and their families - apart from informality, expedition and privacy - was that they were not required to show negligence. The awards of the hepatitis C tribunal were as large as those which could be made by the courts; with the significant exception that they could not order the payment of "exemplary damages". What this means is that the tribunal could not make any award beyond what was necessary to compensate the claimant in order to punish the State.

On legal fees, probably the main reason the beef tribunal cost so much was a simple piece of carelessness, probably within the Chief State Solicitor's Office, which deals with litigation in which the State is involved.

The essential underlying point here concerns the calculation of the typical fees of a barrister, namely a case in which the barrister is representing a plaintiff in a personal injury action. If the action succeeds, the defendant insurance company pays the fees; if the action fails then usually the barrister is unpaid. And so the fees have to be fixed at such a level that the payments on the sunny days, when the action succeeds, make up for those on the rainy days.

No doubt, in the case of the beef tribunal, counsels' fees were fixed at the conventional rate for counsel of the appropriate level of seniority, neglecting the fact that for the beef tribunal, the counsel would actually be paid for nearly 150 days. A meteorological impossibility - a succession of 150 sunny days - was overlooked.

However, the root cause of the tribunal's cost was something which is a major policy laid down by the courts here and observed across a wide area of public administration. It is the precept that it is often insufficient for a matter to be thoroughly investigated by a body, which is impartial.

In addition, the so called second principle of constitutional justice means that the person affected must be informed of the case against him or her and given the opportunity to put forward his or her own case in reply. It does not suffice if the same ground is covered by the impartial body itself, without the assistance of the person affected.

This fundamental precept has been applied not just to actual decisions but even to investigations which may affect reputations. The seminal case is Re Haughey (1971) which concerned the legal representation before the Dail Public Accounts Committee investigating the fate of monies intended for Northern Ireland Red Cross relief of a person whose conduct was under investigation by the committee.

ONE rather unsatisfactory way around this rule of constitutional justice was taken in early 1995 by the Dail committee inquiring into the fall of the Reynolds government. The solution adopted following legal advice - was not to permit the of politicians affected to be represented but, as a quid pro quo, not to reach any conclusions.

The rule of constitutional justice was not followed at all in the British Scott Inquiry, something for which it was criticised by a former Conservative minister.

This whole area recalls the American legal joke about the litigant who rushes indignantly into his lawyer's office shouting that he wants "justice!" The lawyer calms him down, and then says: "Tell me, exactly how much justice can you afford?"

The terms of reference of the tribunal register public concern at the possible expenditure by the requirement "that the inquiry be completed in as economical a manner as possible and at the earliest date consistent with a fair examination".

However, it is a little unclear what is added by the provision that the inquiry "report on an interim basis no later than the 20th day of any oral hearings to the Minister for Health" upon the number of parties represented and the progress which has been made.

Surely it would then be too late to do anything about it. Various laws, stemming from the legislation under which the tribunal was constituted, not to mention constitutional justice, would prevent the Houses of the Oireachtas - never mind the Minister for Health - from interfering to change the rules of the game halfway through.