Private nature of Commissions of Investigation ‘problematic’, says McGrath

Commissions of Investigations conducting their work in private is “problematic”, Minister for Public Expenditure and Reform Michael McGrath has said.

Mr McGrath said he would like them to hold hearings in public, questioning one of the main rationales behind this type of State inquiry.

The Commission of Investigation model was introduced in 2004 following widespread criticism of the enormous costs and inordinate length of Tribunals of Inquiry such as the Moriarty Tribunal and the Planning Tribunal which between them racked up hundreds of millions of euro in costs.

The brainchild of then minister for justice Michael McDowell, the thinking was a private enquiry would reduce the need for teams of lawyers for each witness and also obviate the need for lengthy cross-examination of witnesses. They would be less costly, speedier and more efficient.

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However, it has not turned out that way with a number of investigations taking much longer than originally envisaged - and with substantial attendant costs - while little information filters through to the public because of their private nature.

Most of the ongoing Commissions - relating to the IBRC and Siteserv, NAMA’s Project Eagle, ‘Grace’ and convicted Waterford sex abuser Bill Kenneally - are going into their fourth or fifth years and have racked up substantial costs.

“The holding of Commissions of Investigations in private is problematic,” said the Fianna Fáil Minister.

“There is the facility to hold them in public but in very few instances is that the chosen method.

“It is fine to hold them in private in certain instances - Nyberg (the investigation into the banking collapse) was a good example.

“But the public do want to see key players being questioned and to see their answers,” he said.

The 2004 legislation provided commissions be conducted in private but under Section 11 it allowed evidence to be heard in public in certain circumstances. That section has not been invoked to date.

Critics claim the private nature of the proceedings have made them secretive, opaque and not open to scrutiny.

Personal testimony

Most recently, the Mother and Baby Homes Commission was criticised over the claim that personal testimony given by survivors to confidential committees was not used for the final report.

Commission members declined invitations to appear before an Oireachtas Committee to outline their approach.

Mr McGrath has contended that not only are the findings of an inquiry important but also the public hearing element.

“It is more efficient to do them in private but you do lose that element of transparency and public accountability. There is a balance to be struck.”

Referring back to the inquiry conducted by the Oireachtas into the collapse of the banking sector, he said: “One of the things about the banking inquiry is that we had public hearings everyday. Witnesses came in and answered questions or evaded questions. It was there for everybody to see.

“That is not accommodated within the current Commission structure.”

However, the Oireachtas banking inquiry report was itself severely criticised, something that Mr McGrath acknowledges. He says this form of inquiry is severely constrained by the defeat a decade ago of the Referendum to provide broader powers.

“You cannot reach conclusions that are adverse against people’s reputations. There are very few findings that are uncontested, and fewer of value that are uncontested.

“So you have to go in with your eyes wide open. The Court of public opinion is important. The fact that we got some of the main players to come before it in public… the public made up their own mind for good or ill based on what they heard.

“While we were limited in the conclusions we could reach, I believe the telling of the story and the holding of the inquiry in public session was of real value,” he said.