Tribunals made wary by legal judgments in courts

Whether it be the amended findings of the Mahon/Flood tribunal into certain planning matters, the controversy over the inquiry into the sale of Siteserv and other assets by the Irish Bank Resolution Corporation, or the Oireachtas banking inquiry, there is obviously something amiss about Irish efforts concerning inquiries into matters of significant public concern.

A large part of the explanation for this goes back to 1971, when the late Pádraig “Jock” Haughey, brother of the late former taoiseach, Charles Haughey, was called as a witness before an investigation by the Public Accounts Committee into the handling of public money at the time of the Arms Crisis.

Issues arose as to Jock Haughey’s right to his good name, and he took a case that went all the way to the Supreme Court. The judgment of that court included statements concerning fair procedures and people’s right to their good name that have continued to influence the law to the present day.

Right to good name

Ireland has gone on to accrue a very highly developed set of legal standards in the area of people’s right to their good name.

The area is more highly developed here than in jurisdictions such the UK or the US, some legal observers believe.

Another milestone was the 2002 Supreme Court judgment in the Abbeylara case, when an Oireachtas committee wanted to investigate the death in 2000 of John Carthy, who was shot by a garda.

The court found the Oireachtas had no power to make adverse findings of fact and conclusions, including a possible finding of unlawful killing, against individuals who were not members of the Oireachtas.

On that basis, members of An Garda Síochána were not obliged to appear before any such committee.

A referendum proposal in 2011 to grant the Oireachtas greater powers to conduct inquiries that might affect people’s good name was rejected.

A number of the findings of the planning (Mahon) tribunal have been withdrawn or amended, or are being reviewed, arising from successful challenges that fair procedures had not been followed.

More recently, it has emerged that people seeking their costs from the tribunal have been successful in challenging decisions to restrict the extent of the costs they might be granted.

Chawke case

In 2014 the publican Charlie Chawke took a successful case against the planning (Mahon) tribunal and its decision to deny him 70 per cent of his legal costs.

He argued successfully that he did not receive sufficient warning that the tribunal was going to reject his evidence that he contributed to a “dig-out” to the former taoiseach, Bertie Ahern.

The tribunal’s rejection of the evidence in relation to the dig-out stands, but the people who gave the evidence cannot be denied their costs.

The Moriarty tribunal, which investigated payments to Charles Haughey and Michael Lowry, is currently awaiting a judgment from the High Court, where Lowry has challenged its right to deny him two-thirds of costs that he says will amount to millions of euro.

Tribunals, often as a result of rulings made in the courts, became very careful during the so-called tribunal era about adjudicating on matters that are really the preserve of the courts, such as making findings of criminal activity.

Likewise, they have to be careful about straying into another preserve of the courts - the issuing of punishments. A tribunal is not allowed to deny costs on the grounds that it decided someone acted improperly at some point in the past.

Some legal observers believe the best solution would be to establish a full-time authority for the investigation of suspected malfeasance, which could, if it believed it had sufficient evidence, file a report to the Director of Public Prosecutions, who could then decide whether charges should be brought.

Crucially, however, the work of such a body would have to be conducted in strict confidence.