Tight and focused terms of reference for new tribunal crucial for success

WITH investigations, as with clothes, fashions are unpredictable, and what was once despised can again become all the rage.

Just last, week, the Minister for the Environment, Brendan Howlin, described at the hepatitis C tribunal the general horror that the very thought of a sworn public inquiry evoked as recently as 1994. Yet, in the last week the Government has announced two: one to look into the infection of blood and blood products with HIV and hepatitis, and the other to investigate payments to public figures by Dunnes Stores.

The renewed credibility of the tribunal as a necessary arm of government in Ireland is undoubtedly due to the outstanding success of the hepatitis C tribunal. In the six weeks of hearings which ended on Tuesday it showed that such a body can not only vindicate the rights of citizens but do so with speed, efficiency and dignity.

But if the Dunnes tribunal is to repeat that success, it must also repeat the conditions that made it "possible. As a timely warning of what can, go wrong, the High Court Taxing Master has, just this week, been hearing the State's appeals against the awarding of over £7 million in legal costs - a sum that seems obscene to many citizens - to Mr Larry Goodman and Goodman International for the beef tribunal.

The first condition for success that the hepatitis C tribunal fulfilled, and the beef tribunal did not, is terms of reference that are specific and tightly focused. The Dunnes inquiry seems to meet this condition. It has to investigate just a single set of payments by a single company, albeit to a range of individuals that is, at the outset, unknown.

The practical advantage of this is that unlike the beef tribunal where there were up to eight legal teams questioning any one witness, going over the same evidence from slightly different points of view, the number of lawyers should be relatively small.

Dunnes Stores, and/or Ben Dunne, the tribunal itself and any witness called before the tribunal will be entitled too representation. There may be a legal team representing the public interest. But this should still mean that there will be far fewer lawyers than at the beef tribunal and probably fewer even than at the hepatitis tribunal. The effects should be more speed and less money.

The second condition for success is the possibility of establishing agreed facts before the actual hearings begin. In the beef tribunal, almost nothing was agreed in advance, and every fact had to be extracted tortuously from a painful process of argument, accusation and denial. The hepatitis C tribunal, on the other hand, started with fundamental agreement on what had happened and proceeded to examine nuances of responsibility and interpretation.

In relation to this condition, the Dunnes inquiry will be in a rather strange position, analogous to that of the man who lost his glasses and could not look for them until he found them. Its chairman, Mr Justice McCracken will not know exactly what he has to investigate until his investigations are at an advanced stage.

The tribunal will be unable to agree basic facts, or even to decide what exactly it has to investigate, until it has done the most important part of its work - securing Ben Dunne's High Court affidavits which allegedly contain details of his payments to politicians and public figures. And the second half of its investigation into alleged payments to public servants and local government officials is even more of a shot in the dark. It will be dependent on a second report which Judge Gerard Buchanan has yet to compile.

On the other hand, Mr Justice McCracken will be able to draw on the work already done by Price Waterhouse, not so much in the actual report which Judge Buchanan has been examining, as in the supporting documents which are said to be have been drawn up by the consultants.

The lesson of both the beef and the hepatitis inquiries is that tribunals are as good or as bad as the documents they get hold of. They provide the islands of certainty in a sea of faulty recollections and divergent accounts. If as seems likely, the Price Waterhouse documents are as thorough and detailed as might be expected from a firm of professional consultants, Mr Justice McCracken's chances of unravelling what is likely to be a complex series of financial transactions will be greatly enhanced.

In that task, he has two personal advantages. In the first place, much of his work as a senior counsel was in company law cases, and he is unlikely to be bamboozled by balance sheets. In the second, he has behind him the salutary experience of the beef tribunal, where he represented Dick Spring and Barry Desmond.

He may well find, nevertheless, that his most important work in the inquiry will be done in the time between his appointment and the beginning of sworn evidence, when documents are being, secured and sifted. In that context, the State must place any expertise he may want accountants, banking experts, financial investigators at his disposal.

If he is able to begin his hearings with a reasonable idea of the ground he has to cover he has a good chance of becoming the second judge in 1997 to vindicate through a public inquiry the public's right to know how it is governed.