Diarmaid Ferriter: Women of Honour group wants a tribunal, but what lies ahead could be interminable

“Nothing about us, without us.” That was the powerful motto of former inmates of the Mother and Baby homes as they sought accountability, vindication and justice. The same words are applicable to the Women of Honour group campaigning for a tribunal of inquiry into their treatment in the Defence Forces. They also want such a tribunal to probe the culture and practices of the army more extensively. They have identified fifteen strands they believe a tribunal should investigate, including instances of abuse from May 1st, 1973, to the present day, and events that occurred in Ireland and overseas.

The Tánaiste and Minister for Defence Micheál Martin faces a tough call in relation to this. The understandable and justified outrage at the scale of historic abuses has meant that for over quarter of a century we have been living in a land of investigation: tribunals, commissions of investigation and commissions of inquiry. Broad terms of reference open to a variety of interpretations can add years to investigations and the sharing of thousands of documents with multiple parties. There are also the requirements of fair procedures as laid down by the courts. The combination of these elements can lead to prolonged delay and cost, legal challenges, new legislation, and quagmires.

Earlier this year, the Department of Public Expenditure and Reform estimated that seven tribunals, twelve commissions of investigation, one commission of inquiry and three other specific reports have cost €517 million in the past 25 years. That half a billion headline figure might seem inordinate, but when the scale of subjects and wrongs covered are considered – including payments to politicians, child abuse, incarceration in institutions and the conduct of Gardaí – it is not that shocking.

But there are manifold difficulties with inquiries and their outcomes. Lawyers have been paid millions, reports have been contentiously challenged and prosecutions are uncommon in their wake as is speedy implementation of their findings. Nor are they about justice, as formally, “it is not a function of tribunals to administer justice; their work is solely inquisitorial.” The 1921 Tribunal of Inquiries Act specified that a tribunal should be established “for inquiring into a definite matter... of urgent public importance”, but the extent to which they remain focused on a “definite matter” is problematic. The decision to introduce the Commissions of Investigations Act in 2004 to create a less expensive and less cumbersome method has not had the desired results.

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The essential dilemma relates to the requirement of the Oireachtas for speedy investigations on a matter of ‘urgent public importance’ with the parallel legal need ‘for constitutional justice and fair procedures under Irish law’

Judge Brian Cregan, who presided over the investigation of the Siteserv transaction and whose final report was published last month (he was appointed in 2015 and it was originally expected that his investigation would conclude in 2017), has suggested the commission of investigations model is unsatisfactory and what is needed is a permanent commission of investigation, properly resourced. The essential dilemma relates to the requirement of the Oireachtas for speedy investigations on a matter of “urgent public importance” with the parallel legal need “for constitutional justice and fair procedures under Irish law”.

Terms of reference for future inquiries, Cregan suggests, should be scrutinised by a committee of those with previous experience of inquiries, not least because the “knowledge and expertise” built up over the course of an inquiry “is effectively lost as each commission finishes its work”. He also suggests changes to the way in which evidence from relevant witnesses is taken without the need for all parties to be present.

‘Rebalancing’

At the MacGill summer school in 2019, Supreme Court judge Peter Charleton, who has extensive experience of tribunals, underlined their importance but also highlighted the problematic way they are obliged to operate and suggested a “rebalancing”. He warned that their functioning was becoming “close to impossible” because of the heaping of “procedural right on procedural right”. Surely, he argued, “a better approach is to trust the tribunal to actually do the inquiring, to turn the model from that of a criminal trial to one where counsel for the tribunal does the examination, where the key parties have the right to legal advice, and where the impulse to resort to judicial review and delay is resolved by the simplicity of that procedure.”

It will be politically difficult to resist the wishes of the Women of Honour. Their demand for a layered, public investigation of five decades of Defence Forces history is understandable

It is for the politicians to legislate for any change. But perhaps it would be in the public interest for the judges and other legal minds who have operated the current system and who have ideas as to how to improve it, to come together to build on Cregan’s suggestions and devise workable proposals that will address the existing deficiencies.

In the meantime, it will be politically difficult to resist the wishes of the Women of Honour. Their demand for a layered, public investigation of five decades of Defence Forces history is understandable, and their anger justified. But it is also likely that their desire for “as many people as possible” to “have their say and have their issues dealt with” will lead to an interminable saga.