THE key question for the tribunal investigating the Dunnes payments issue is whether it will have the power to insist on seeing Mr Ben Dunne's famous affidavit and cross examining him on it.

The tribunal - in contrast to the investigation by Judge Gerard Buchanan comes clothed with the substantial statutory powers contained in the Tribunals of Inquiry (Evidence) Act 1921-79. This makes it a criminal offence, punishable, on trial on indictment, by a maximum of two years' imprisonment and/or £10,000 fine, for any witness to refuse to answer questions or produce documents in his/her control. This reference to documents would cover not only the affidavit at the centre of the investigation, but also any other relevant records, bank statements, letters, etc.

So far, the legislation would seem to cover everything which the tribunal might need for its investigation. However, dropped into the part of the 1979 Act dealing with these powers is the pregnant phrase "legally required". This phrase can be taken to refer to the evidential law, which gives a person a privilege against the disclosure of evidence which has been generated as part of the lawyer client relationship during the preparation for a court case.

Does the affidavit come within this privilege? Telling against its inclusion is the fact that in contrast to, say, a letter from a client to his lawyer it was written to be read in open court. However, as against this, it was not in fact actually read out in court because the proceedings were settled. This makes the situation unusual. However, it seems probable that it does not enjoy privilege.

READERS at this point will reasonably ask: is there no constitutional provision which Mr Dunne may be able to invoke, assuming that (as the old music hall joke had it), "Like Dad, he wished to keep mum?" The answer is probably that the Constitution is no help here. The right to privacy is not absolute and it must bow before the public interest in an appropriate case, which this certainly is.

Secondly, the administration of justice before a court is important and is certainly protected by the Constitution. The question is whether it could be said to be interfered with by a rigorous cross examination of Mr Dunne on his affidavit before the tribunal. This seems unlikely, since his court proceedings with his family have been settled and so cannot be influenced.

Moreover, even if one could make some kind of argument that future litigants in other court cases might be influenced by such a cross examination, surely the reply could be made that he is only being cross examined on material which he intended to put into the public domain anyway? He has, therefore, little about which to complain.

To turn to a different point: it seems to be officially believed that since the tribunal has the status of a court, its sittings may not lawfully be televised. But the basis of this reasoning seems to be wrong, for there is in Irish law no absolute rule banning cameras from a court sitting. It is true that until 1995, permission to take pictures, still or televisual, had invariably been refused by the judge.

In 1995, however, RTE cameras were allowed to film the opening of the Supreme Court hearing as to the constitutionality of the Regulation of Information (Services outside the state for the termination of pregnancies) Bill. There is no reason why a court should not do the same again, if the presiding judge thought it a suitable case.

Now, a tribunal - according to the 1979 Act - enjoys "all such powers, rights and privileges as are vested in the High Court". This surely means that a tribunal, like a court, may it exclude or admit the cameras as thinks best. Moreover, a tribunal differs from a court in that there is a greater element of "public interest" in its subject matter. It might seem therefore reasonable at least to ask a tribunal to permit the broadcasting of some of its proceedings.

LURKING in the foreground of the consideration of any tribunal is the question of legal costs: how much, and who pays. The lion's share of attention seems to have focused on the first question and, in particular, the efforts made in the terms of reference to try to minimise costs: see, for instance, the requirement in the terms of reference that the tribunal must report to the Clerk of the Dail on such matters as the number of parties to be represented.

However, it seems to me that there is still some mileage in the second question. Admittedly, the beef tribunal assumed that, subject to one or two exceptions, the State should pay for everything. But that seems by no means self evident. The crucial provision, Section 6 of the 1979 Act, reads as follows: "Where a tribunal is of the opinion that, having regard to the findings of the tribunal, and all other relevant matters, there are sufficient matters rendering it equitable to do so" the tribunal may order that the costs of any party shall be paid by any other person.

In interpreting this provision, the, beef tribunal stated that in the exercise of its discretion to award costs, it could not have regard to its findings on the matter being inquired into but only to the conduct of a particular party at the tribunal.

Yet this seems to be simply not what the statutory provision just quoted says. It is, moreover, very different from the conclusion reached by the Whiddy Island tribunal. There Mr Justice Costello rejected, with some hauteur, the proposition "that prima facie the cost of all public inquiries should be borne by the State".

The State did not - perhaps because it would have looked odd for the State to do so - make an application for judicial review against the beef tribunal's award of costs. It surely nevertheless could have done so, relying on the wording of the 1979 Act as interpreted at the Whiddy tribunal. One wonders if the Dunnes tribunal will follow the precedent set by the Beef tribunal or that of the Whiddy tribunal.