They may have racked up vast costs and long durations, but inquiries have challenged the character of authority in Irish public life, writes ELAINE BYRNE
WHEN THE Moriarty and Mahon tribunals were established way back in 1997, I had just finished my Leaving Cert. As I sit down to write this column, 100 or so exam scripts from my university students are piled up on my desk waiting patiently to be corrected. Since the tribunals were established almost 13 years ago, my life has graduated from that of a secondary school student to a university lecturer.
Life, like tribunals, can pass you by.
The most common charge against the tribunal process is that it has taken too long, cost too much and is mired in such complexity that the matters of “urgent public importance” under investigation have lost the public’s interest. In particular, the outrageous fees for tribunal lawyers have done the tribunal process no favours.
The forthright language used by Justice Adrian Hardiman in his recent Supreme Court decision against the Flood tribunal has underlined questions about the credibility of the inquiry.
So too has the acknowledgment by the chair of the Moriarty tribunal that he made an error in relation to the attorney general view on a matter affecting the legality of the licence issued to Denis O’Brien’s Esat Digifone in 1996. Moriarty has issued an unprecedented statement in recent weeks seeking to “assert the integrity of the tribunal” in response to a “sustained attack” on its work.
A 2008 report by the Comptroller and Auditor General into the tribunals concluded that their lengthy nature was due to the wide terms of reference, adversarial procedures, extended cross-examination, procedural shortcomings, legal challenges and the obstruction or non-co-operation of witnesses. By December 2007, for example, 29 time-consuming legal challenges had been filed against the Mahon tribunal.
The purpose of a tribunal is to investigate facts and make recommendations in order to prevent recurrence.
Tribunals, according to a 2005 Law Reform Commission report, provide reassurance by rebuilding public confidence after a major failure.
They establish accountability and hold people and organisations to account. They also serve a wider political agenda by demonstrating that “something is being done”.
Tribunals, however, are not courts of law and do not possess the function of establishing liability or punishing individuals through criminal sanction.
The expectations by the public and the realities of the legislative framework are often two very different phenomenons.
Moreover, by chairing inquisitorial inquiries, it makes it difficult for the public to distinguish between the inquisitorial inquiry process and the adversarial judicial process.
The tribunal process, therefore, is effectively a square peg in a round hole. The method of inquiry has become counterproductive to the matters under investigation.
The Law Reform Commission felt it necessary in 2003 to counsel against punishing an individual “under the guise of an inquiry” by “naming and shaming” the culprit. This may account for the intense application to the courts on the constitutionality of the various methods by the inquiries.
What would a balance sheet of the tribunals look like? Including third-party costs, the McCracken tribunal cost the State €6.5 million.
The Mahon tribunal is estimated to cost the State at least €300 million and the final bill for the Moriarty tribunal could be more than €100 million.
The financial implications of the recent Supreme Court decision, regarding the Mahon tribunal’s attempt to withhold costs from Joseph Murphy jnr and Frank Reynolds, have made it difficult to determine any concrete estimate of final costs.
The public are absolutely right to be justly concerned about the extraordinary cost of conducting the various inquiries. But the tribunals and other inquiries have had their achievements too.
As a consequence of the McCracken, Moriarty and Mahon tribunals, the High Court Ansbacher Inspector investigation and the Dirt Parliamentary Committee Inquiry, the Revenue Commissioners have to date collected €2.6 billion in special investigations into various mechanisms to evade tax.
On my last count, 32 public inquiries have been initiated to examine matters of public concern within politics, business, church, police, finance, public service, professions and health in the 20-year period between 1990 and 2010.
In what has become a permanent process of institutional self-scrutiny, a variety of non-statutory, Companies Act, tribunal and parliamentary inquiries have comprehensively challenged the very character of authority in Irish public life.
A sea change in attitudes towards the integrity of self-regulated institutional authority has occurred.
This was long overdue and marks a positive development in Irish public life. Traditional values of blind deference, misguided loyalty and the fear of asking questions have undergone an electrifying process of clarification.
It is regrettable that the outdated legislative infrastructure of the inquiry process has allowed attention to be shifted from the very serious substantive issues at the heart of the tribunal to the method of inquiry.
This has also dogged other inquiries – for instance those into Italian corruption. Tensions between the political and judicial branches of the state have been exacerbated by accusations that the judicial authorities have unnecessarily intruded into the political realm.
Media attention has shifted from the allegations of corruption to disputes about the alleged bias of judges.
The Italian public no longer pay any attention to their corruption inquiries and, as a consequence, many Italians are pessimistic about trust in politics.
In Italy, focus is directed to the method of inquiry rather than on the underlying allegations themselves.
I guess for some people at the centre of inquiry that would be very convenient indeed.