The former Taoiseach, Mr Charles Haughey, and members of his family will not, presumably, be too displeased with yesterday's Supreme Court ruling. As one observer noted wryly the roots of the Moriarty Tribunal may remain intact but some of the branches have been severely shaken. In the first substantive part of its judgment, the Supreme Court dismissed the Haughey challenge to the constitutionality of the Moriarty Tribunal in the most unambiguous manner. This is an landmark ruling which reaffirms the thrust of the Goodman judgment and it effectively makes the Tribunals of Inquiry Acts immune from constitutional challenge.
The second part of the judgement - in which the court found that Mr Haughey and his family had been victims of unfair procedures - could delay and complicate the work of the Tribunal. The court found that the tribunal was not entitled to make discovery against bank accounts held by Mr Haughey and members of his family - without giving them the right to make representations. As a result, the Supreme Court will this morning quash the 36 or so orders of discovery made by the Moriarty tribunal. The documentation in relation to the bank accounts will be returned and, critically, the Moriarty tribunal will not be entitled to use the information gleaned on foot of the discovery orders.
As the Supreme Court made clear in its ruling, the quashing of the orders does not, of course, preclude Mr Justice Moriarty from making similar orders in the future, provided fair procedures are observed. At this writing, the impact of yesterday's ruling on the work of the Moriarty Tribunal is unclear. It may be that the judgment will delay the work of the Tribunal by months; it may be that the Tribunal could be delayed for a much longer period, should Mr Haughey challenge discovery orders sought by the Tribunal.
There will be those who will argue that Mr Haughey - having failed in his constitutional challenge to the Tribunal - is fortunate to have secured a judgment which could frustrate its operation. Perhaps we should not be unduly surprised; Mr Haughey's penchant for self-preservation is already the stuff of legend.
For all that, few fair-minded people would question the fundamental principle of fair procedure reaffirmed by the Supreme Court. It is clearly the case that any tribunal, in making a potentially far-reaching discovery order, should, in the first instance, observe the principle of hearing the other side. Part of the difficulty faced by the Moriarty tribunal and, indeed, the Flood tribunal into alleged planning irregularities, is the lack of clear legal direction as to the exact parameters of such inquiries. Since both tribunals are operating in uncharted waters, some legal setbacks of the kind experienced by the Moriarty tribunal are probably inevitable. The challenge facing policy-makers is to ensure that such difficulties are anticipated and the work of lawfully constituted tribunals not inhibited.