Mr Justice Peter Charleton has said there are "clear and obvious dangers" of continuing to run tribunals the way they have been conducted in Ireland, with the current system making the "functioning of tribunals close to impossible".
He suggested that the role of legal teams could be dramatically curtailed in an effort to streamline the tribunal system.
In strongly worded remarks at the MacGill Summer School in Glenties, Co Donegal, on Sunday night, Mr Justice Charleton, who chaired the recent Disclosures Tribunal, argued that the current system of public inquiry risked becoming unwieldy, and burdened down with procedure and legal argument.
He said the system has “become totemic and symbolic and is constantly in peril of toppling over”.
Mr Justice Charleton told the summer school that “we have made public inquiries into something that they are not; a trial where only those who might be criticised have rights and we the people, paying for the entire process and with an urgent entitlement to know what has gone wrong in order to make our country better, have been forgotten”.
Mr Justice Charleton was delivering the annual John Hume Lecture at the summer school’s opening evening. Pointing out that there were 35 individuals who had full “accused-of-murder” rights before the Disclosures Tribunal, he said “this means the tribunal is dealing with a scrum”.
Less like trials
He suggested that opportunities for cross-examination by teams of lawyers could be curtailed, with questioning instead being the responsibility primarily of the tribunal itself. In doing so, tribunals would become less like criminal trials, and the “impulse to resort to judicial review and delay” is diluted by key parties having the right only to legal advice.
“One team can put all questions fairly. That is my experience. That’s what they are there for.”
He warned that tribunals should be “rebalanced so that the community also has rights”, whereas the Irish response has “been to heap procedural right on procedural right in such a way as to make the functioning of tribunals close to impossible”.
While he said that tribunals had, and would continue to play a part in Irish society, he pointed out the success of a number of supreme and high court challenges to findings, as well as failures such as the months spent during the Kerry babies tribunal on the theory of superfecundation, or the criticism of the Stardust tribunal by families of the victims of that tragedy.
The school was opened on Sunday evening by Deike Potzel, the German ambassador to Ireland. Speaking to The Irish Times, she said German support for the Irish position during the Brexit negotiations was assured.
Asked if she thought Germany would put pressure on Ireland to compromise on the backstop, she said “I don’t see any inclination for it”.
“We have been 100 per cent behind the Irish in this. I don’t have any basis for suggesting that our position has changed in any way. We have been very steadfast.”
She said she was still hopeful of an orderly Brexit. “The chances for a no-deal obviously have grown, but I’m still hopeful because I still feel it is so obvious a no-deal will be so harmful for either side, meaning the European Union and Britain, that that must be so convincing to each and everyone to do everything, and as the Chancellor [Merkel] said, to fight to the last minute to avoid a no-deal”.