Colm Keena: We should beware another era of tribunals

One of the most valuable of the freedoms found in western democracies is the right to be left alone.

Across the non-western world, arbitrary interference, including arrest and incarceration, and the seizing of property by persons who are too powerful to be resisted, are everyday occurrences. Often it is those who hold power who are to be feared most.

The key way in which we are shielded from this form of oppression is the rule of law. When powerful interests try to interfere with you in ways they have no right to, you can, at least in theory, go to court and have them put back in their place.

All of which is by way of introducing the topic of tribunals of inquiry. With tribunals, people’s right to be left alone is compromised for what is perceived to be the public good. Furthermore, the rule that you can only be put on trial in a court, becomes blurred.

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Our tribunal law goes back to 1921, when the Tribunal of Inquiries Act was introduced in London because parliamentary inquiries were considered hopelessly biased and corrupt. The driving force was a major scandal to do with, of all things, the issuing of telecommunications (telegraph) licences.

In the period 1997-2012, the State was inundated by tribunals. As a result we learned the grubby secret behind Charles Haughey's extravagant lifestyle; that there had been financial connections between Denis O'Brien and Michael Lowry around the time that Lowry, as minister for communications, had overseen the mobile phone licence competition that O'Brien's Esat consortium won; and that former taoiseach Bertie Ahern had difficulty explaining his personal finances when he was minister for finance in the early 1990s. The value to society of those disclosures is obviously considerable.

However, the tribunal years also gave us the scandal that was the treatment of Joseph Murphy jnr, his late father, and others, by the Flood (planning) tribunal. A former employee of the Murphy group of construction companies, the late James Gogarty, who had a grudge against the Murphy family, alleged, among other matters, that Murphy jnr had been at a meeting in the house of then government minister Ray Burke in 1989, where it is alleged a cash bribe was handed over.

Everyone allegedly involved, apart from Gogarty, said this was not true. Murphy said he had never met Burke, and was in London on the day in question. He produced witnesses who spoke to him over the phone there that morning and that evening. But Mr Justice Feargus Flood chose to believe Gogarty.

Slim basis

It was a slim basis for shredding someone’s good name. But it was worse than that. As is now known, the tribunal had in its possession information which raised questions about Gogarty’s credibility, but which it did not disclose to the Murphys.

The tribunal’s adverse findings against the Murphys were quashed last week.* That an enormously expensive, State-appointed agency could have interfered in citizens lives in this way should be a matter of significant public concern.

The particularly worrying aspect of the debacle is that what happened may be due to an inherent and recognised danger with tribunals. They are both investigative body and adjudicating authority. It is like asking the investigating garda to make the final decision on a suspect’s guilt.

Even without flawed findings, tribunals by their nature involve citizens who are not the subject of any criminal charge being compelled to co-operate with a public inquisition, very often at great trouble and expense, and one that can go on for months and even years.

Tribunals are both flawed in structure and offensive in principle. But what can society do when there is a matter of urgent public controversy which cries out to be investigated, such as the flurry of suspicions about the treatment of Garda Sgt Maurice McCabe? Such matters can hardly be left unexplored.

Imperfect solution

The truth is that the western world has struggled to come up with a solution. We are stuck with a trade-off between the individual’s right to be left alone, and the need sometimes to shine a light on matters of grave public concern.

The chairman of the tribunal that will investigate the McCabe controversy, Mr Justice Peter Charleton, has, in remarks made last week, shown that he is very aware of the difficulties previous tribunals have encountered. The court challenges they have provoked means that the law about how they should go about their business is "now clear", he said. The touchstone "is fairness."

He also said that the legal mind is “conditioned to look for evidence, to seek supporting evidence . . . to not leap to conclusions, and to not declare that someone has done something discreditable without sufficient proof. That is our standard and we will abide by it.”

But, as noted by the late Mr Justice Adrian Hardiman, the calibre of a tribunal's chair does not eliminate the inherent flaws within the process. In a ruling where he overturned a decision by the Flood tribunal not to grant the Murphys their costs, he quoted Seamus McKenna SC, who was acted for Larry Goodman in the Beef tribunal. McKenna said that concerns about the nature of tribunals apply whether a tribunal is "presided over by a Solomon or a simpleton."

Even if this one goes well, we should be very wary of unleashing another tribunal era.

*This article was amended on March 13th 2017