Are tribunals just a convenient parking place for political scandals until they fade from public memory? Will significant prosecutions result from them, or will the protagonists die before justice can be done? Is there a better way to tackle matters of serious public concern, asks Carol Coulter, Legal Affairs Correspondent
There were 10 tribunals and inquiries running during 2002, at a cost of tens of millions of euro, and the demand for tribunals to inquire into various shortcomings in Irish life continues to grow. The latest people to call for a tribunal are the patients of obstetrician Dr Michael Neary, who is being sued by 65 women for allegedly carrying out unjustified hysterectomies during childbirth. Alison Gough, who took the first case, was awarded €273,000 in the High Court last week.
Meanwhile, the Parents for Justice group, which is campaigning for an inquiry into the disposal of the organs of children who had post mortems in hospital, is seeking to turn the private Dunne inquiry into a full statutory public inquiry.
Continuing outrage over the treatment of the victims of child sex abuse by the Catholic Church has led to the decision to set up an inquiry into how it was handled in the diocese of Ferns and there are calls for an inquiry in Dublin as well.
But are tribunals and statutory inquiries always the best way to deal with wrong-doing and neglect by public bodies?
There is no doubt that without a number of recent tribunals we would not know what happened in various matters of enormous public importance. As this week's revelations show, the Flood tribunal continues to unearth evidence of corrupt payments to politicians. The McCracken and Moriarty tribunals told us about the relationship between certain leading politicians and big business, and led to revelation of tax evasion on the part of some of our richest citizens. This led to the High Court inquiry into the Ansbacher deposits.
We know a lot about the arrogance and incompetence of the Blood Transfusion Service Board thanks to the Lindsay Tribunal. The Laffoy Commission into the abuse of children in institutions is affording the victims of that abuse the opportunity to describe what happened to them in an official forum and, hopefully, will show how members of religious orders came to abuse them with impunity. Although they are expensive, some inquiries instigated by tribunals have led the Revenue Commissioners to unpaid taxes they would not otherwise have collected.
But even this short account shows tribunals are being set up for many reasons. The Oireachtas is empowered to set up tribunals of inquiry into "matters of urgent public importance". But there is no definition of "urgent", and tribunals have been established to examine both recent scandals (such as the behaviour of certain gardaí in Donegal) and suffering inflicted many decades ago (such as child abuse in institutions).
Tribunals such as Moriarty and Flood will report many years after the scandals that gave rise to them first arose, and this can hardly be described as an "urgent" response.
Some inquiries arise from public scandals within the political system, where individuals or institutions that should have been publicly accountable patently were not. Others are victim-driven, where a group of victims garner enough public sympathy for their plight to pressurise politicians to set up a tribunal.
But a tribunal may not meet their needs. A tribunal of inquiry is a fact-finding exercise. It does not carry any legal consequences and its results cannot be used in a criminal prosecution. It is essentially the opinion of one person on what happened.
This type of tribunal faces the dilemma that if it does not satisfy the victims it will be judged not to have been successful, as is already the case with Lindsay, even if it does unearth certain facts and make recommendations for the future.
Some of the other tribunals are unlikely to finish their work before all "urgency" has gone out of the question. For instance, by the time the Moriarty tribunal has concluded, Charles Haughey could be dead and Michael Lowry a political irrelevance.
Likewise, the Flood tribunal, although its first interim report was widely praised for calling a spade a spade, is unlikely to conclude before many of the public representatives whose behaviour it is examining have died or retired from public life.
Tribunals have become a popular response for both politicians and the public for a variety of reasons. For politicians, they are a way of parking a political problem. Instead of having to deal with a problem they can kick it to a tribunal, there to languish until the initial scandal has faded from public memory. This risks debasing the currency of tribunals.
For a public cynical about the ability of politicians and other authority figures to give a straight answer, a tribunal, with its powers to compel witnesses and discover documents, seems the only way of getting at the truth. However, all those whose reputations are likely to be affected must have the right to cross-examine and therefore have legal representation. This adds greatly to the time and expense.
It is now time to analyse what we want from tribunals and find a way of delivering it in a more timely, efficient and cost-effective manner. It is clear that the quality and accountability of many of our public institutions has left a lot to be desired, and a way is needed of discovering wrong-doing, identifying those responsible and making recommendations for the future.
There are two distinct strands in tribunals - the gathering of information, and then the analysis of this information and conclusions. For victim-driven tribunals with identified victims there is also a strand of personal testimony.
The Laffoy Commission has dealt with this latter strand by having a separate, confidential committee hearing in private, without cross-examination, the testimonies of the victims of abuse in institutions. That may be a template for inquiries involving victims in the future.
The preliminary work of gathering information may not be best done by lawyers, as at present. Skills such as those of accountants, gardaí or, indeed, social workers and psychologists, may be more appropriate to certain investigative work. A new mechanism could examine failures of institutions and organisations to meet their remit in a fair and accountable way. It could be given the power to request documents and interview the agents of these institutions, with officials trained in this work. None of this needs to be carried out in public, if co-operation is forthcoming.
Once this information is gathered, there are likely to be areas of conflicting evidence, or instances where people have refused to co-operate. Other, more draconian powers, could then be invoked, seeking the discovery of documents and the examination of witnesses under oath. This is the stage where lawyers would come in. Those people whose refusal to co-operate at an earlier stage prompted this process could be obliged to pay the costs. Eventually a report, with recommendations where necessary, would be published.
There are examples where something like this has worked. The Ansbacher report was drawn up by inspectors appointed by the High Court under the Companies Act. The Kilkenny Incest Inquiry was conducted in private by Justice Catherine McGuinness, who had the co-operation of all the agencies involved, as they were agencies of the State, and it produced a comprehensive report.
If health boards had a mechanism like an ombudsman to investigate complaints, the allegations against obstetrician Dr Michael Neary might have been heard sooner, and a lot of suffering averted. Such a body might also have averted the need for the Dunne inquiry. The proposed new Garda Inspectorate is likely to remove the need for inquiries such as the Morris tribunal (examining allegations against gardaí in Donegal) and the Barr tribunal (on the Abbeylara shooting) in the future.
Where allegations against other public bodies are concerned, a mechanism such as a High Court inspection, at present only available under the Companies Act, could be invoked, with the possibility of public hearings where there are conflicts of evidence.
Politicians need to stop hiding behind tribunals. To some victims they must say they acknowledge what happened and offer compensation, while summoning those responsible and demanding answers.
Institutions such as hospitals and health boards should have independent and transparent mechanisms for people to find out what went wrong when they do, on pain of paying for an inquiry if they do not respond adequately. And where there is an ongoing rotten state of affairs, there should be a system capable of getting to the bottom of it and making recommendations for the future.