The Government's plan to introduce a new payments structure for lawyers participating in tribunals is a genuine attempt to control the escalating costs of judicial inquiries in this State.
It is timely. But, the proposal to replace the existing daily rate with an annual salary must be put in context. The Beef, Flood/Mahon, Moriarty tribunals et al were set up in the heat of great resistance in the last decade to investigate allegations of an alarming level of corruption in the planning and political process. The work of the tribunals' legal teams was thwarted in every way possible. And the findings which have revealed a deeply corrupt culture were facilitated only because the best legal brains got involved.
The total cost of all the recent tribunals is likely to reach €440 million by the end of this year, if payments to third-parties are included. The money obtained by the Revenue Commissioners as a result of the work of the inquiries must be set against this figure. Nonetheless, tribunals cannot be seen as the most efficient or cost-effective way of establishing manifest wrong-doing in institutions run by, or under the responsibility, of the State, or of mapping out templates for future governance.
The public has been rightly incensed at the level of fees earned by lawyers at the tribunals, currently in the region of €2,500 a day for senior counsel. These sums, supplemented by substantial brief fees at the outset, are in line with the market rates for barristers at the top of the profession and are based on the premise that the State should employ the best professional advice. But a court case is very different to a tribunal. Typically, it lasts weeks rather than years, and the barrister must then move on to the next case. Court hearings are likely to be intensive, followed by evenings preparing for the next day's proceedings. In contrast, tribunals can proceed in fits and starts, and include non-sitting days.
It can be argued that the new rates may be insufficient to entice the most eminent barristers to give up their regular practice in favour of long periods of tribunal work. That remains to be seen. In the event, further evaluation of the whole tribunal system may be required in order to find a more effective means of responding to crises of public confidence in the State and its institutions.
For his part, the Minister for Finance, Mr McCreevy, indicated that the Government had agreed other measures aimed at reducing the duration of tribunals and increasing their efficiency. These include examining other avenues to investigate matters of public concern, including the new types of inquiry already introduced by the Minister for Justice.
At the heart of the public necessity for tribunals is the conviction - strongly underpinned by many recent findings - that people in positions of power are not accountable. The late Chief Justice, Mr Justice Liam Hamilton, said that the Beef Tribunal was set up because a question was not answered in the Dáil. The best investigative machinery must be available and that costs money.