The terms of reference for the Charleton tribunal into the Garda whistleblower controversy have the potential to spawn a sprawling, lengthy and expensive inquiry that many may come to regret.
However if the tribunal is well-chaired, tightly organised and manages to avoid legal challenges and other delays, it may succeed in wrapping up its work within the target of under a year.
That is a big if. Previous experience tells us that tribunals are subject to constant legal challenges, both at the inquiry and in the courts, as well as myriad delays. They tend to grow a life of their own, as the investigation of one matter prompts the need for further investigations that were not foreseen at the outset.
Tribunals work best when their terms of reference are tightly defined to focus on the nub of the particular issues they are set up to examine. In a way, it is a legal equivalent of the old journalistic advice to establish the “who, what, where, when, why and how” of the issue.
Grounds for optimism
On this score, there are grounds for optimism, For the most part, the new tribunal is inquiring into specific incidents, meetings and protected disclosures involving a small number of actors. A number of reviews and investigations have already covered some of the ground.
It also helps when they enjoy the benefit of a prior scoping exercise in the form of a review of the matters or a preliminary report.
In this case, the reviews previously conducted have failed to assuage the public’s concern over the whistleblower controversy, and have to some extent become the subject of controversy themselves. So they are ill-suited to act as a foundation block for the tribunal.
In addition, the tribunal is being established despite the view of Mr Justice Iarfhlaith O’Neill (expressed before the latest twist in the controversy) that a commission of investigation would suffice. Tribunals last longer and cost more because witnesses enjoy full rights of legal representation, whereas commissions are held in private and cross-examination rights are restricted.
The terms of reference also include some worryingly vague paragraphs. Mr Justice Peter Charleton of the Supreme Court will be required to inquire into "contacts" between An Garda Síochána and the media, members of Government, Tusla, the HSE, "any other State entities" and "any other relevant person" identified by the chairman.
This provision seems capable of an extremely wide interpretation, involving huge numbers of people and masses of communication data across various platforms.
Uncooperative witnesses
Likewise, he is required to investigate any “pattern” of the creation, distribution and use by Tusla of files alleging misconduct against gardaí, a provision that could also be interpreted broadly.
The terms of reference embrace the two main whistleblowers, Sgt Maurice McCabe and Garda Keith Harrison, but a separate provision allows for the investigation of "any other complaints" made by other gardaí up to now. Though this number is likely to be small, we do not know for certain how many complaints this might cover, and what their substance is.
Sensibly, these matters will be dealt with by a second judge once the core issues have been investigated, and only if Mr Justice Charleton thinks it is worth prolonging the inquiry for a second module.
We are told the tribunal will be completed “in as economical a manner as possible” but in truth, there is no knowing what costs will accrue. The terms of reference also promise that uncooperative witnesses will have to pay their own costs but, as previous inquiries show, this provision is extremely hard to enforce.
