Compellability of witnesses issue hits a raw nerve

The sight of the State's most powerful bankers wriggling on the rack during the Dail Public Accounts Committee's DIRT inquiry…

The sight of the State's most powerful bankers wriggling on the rack during the Dail Public Accounts Committee's DIRT inquiry gave a badly needed boost to the political system.

Having scored one success, politicians are keen to display their usefulness again, particularly through the parliamentary committee system. However, the difficulties facing the Abbeylara inquiry show the problems they face.

The type of problems now posed by the nine Garda Emergency Response Unit members' demand for an exemption from giving evidence had been well flagged when legislation to force the presence of witnesses was in its infancy on Kildare Street.

Regardless of the merits of the gardais' case, there are fears that a victory for them could curb future Oireachtas inquiries, including, perhaps, one preparing to investigate overspending in a bizarre CIE signalling contract.

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Under Section 7 of the Compellability of Witnesses Act, 1997, subpoenaed witnesses have the absolute right to argue that their giving of evidence could interfere with the prosecution of crime, or compromise national security.

During its gestation more than a few politicians suspected "a ready-up" by public servants keen to avoid having to account for themselves before the Oireachtas.

"The original draft of the legislation was even worse. It allowed much more room to civil servants to block demands for answers," said one politician, who acutely remembers the legislation's tortuous two-year passage.

Now the exemption application goes before the Government Secretary, Mr Dermot McCarthy, one of the State's most powerful figures.

"Under the Act, he has to wait 30 days before making up his mind whether to grant this application, or not to do so," one source said yesterday.

However, Mr McCarthy's word will not be final. If he allows the gardai to stay away from the Justice, Equality and Women's Rights sub-committee, its members are likely to seek a judicial review.

If Mr McCarthy decides the other way, then it is already guaranteed that the Garda Representative Association and the Association of Garda Sergeants and Inspectors will not rest there. "There'll be a race to the court steps," predicted one figure.

Led by Mr Sean Ardagh TD (Fianna Fail), the sub-committee has faced charges from gardai and others that its very style of questioning leaves members of the armed unit open to public opprobrium.

"Even if the sub-committee does not make recommendations it will have personal consequences for people brought before it," a source said.

The charge has been strenuously rejected by the TDs and senator involved. Mr Ardagh has insisted it is not a trial, and no inferences should be drawn from any questions.

The argument does not satisfy all. "Jim Mitchell played a clever game during the DIRT inquiry. He spoke for the committee. He was careful to portray the TDs as acting seriously, responsibly, quasi-judicially," said another source.

Members of the Abbeylara inquiry have not been slow about coming forward to the microphone. "They should not be doing that. They should agree a line and let Ardagh do the talking," said one experienced figure.

Nevertheless, the problems are not all of the sub-committee's making. Far from it, in fact. Perhaps they should have moved faster to allow the gardai to give evidence from behind screens.

The Minister for Justice, Mr O'Donoghue, took his time to express his concern about anonymity. "The terms of reference for Abbeylara came before the Cabinet yonks ago. Why didn't he pipe up then?" another TD asked.

Last weekend the legal team for the inquiry made efforts to offer such anonymity to the ERU team. The approach received no welcome from their barrister, Mr John Rogers SC.

In addition, the sub-committee has no statement of uncontested facts before it, while the Public Accounts Committee had the fruits of a private inquiry by the Comptroller and Auditor General.

"Such a statement of fact is necessary. Everyone is entitled to know what they are facing before they go in. This has to be about fairness, fairness, fairness. And it must look that way. Otherwise it won't work," said one TD.

The findings of Chief Supt Adrian Culligan are not accepted by all. Indeed, the pejorative descriptions of Mr Carthy have provoked deep anger from the Carthy family and many others.

Following the DIRT investigation, the PAC recommended that the Oireachtas needed someone to prepare such reports, vested with the powers of a High Court inspector.

"The Government has accepted that such a parliamentary inspector needs to be appointed. The Bill is in preparation. It is in the Government's current programme of legislation," a TD said.