ANALYSIS:This is not the first occasion on which Mr Justice Adrian Hardiman has criticised the State's tribunals
THOSE SEEKING public inquiries into various matters that have caused public outrage should consider the remarks made by Mr Justice Adrian Hardiman over the years concerning tribunals.
Yesterday he described their powers as “truly awesome”, the costs “grotesque” and the duration of some as “nothing less than appalling”.
To that can be added his earlier warning that they constitute “great risks for justice”, because of the fact that they combine in one person the investigative and adjudicative function.
Yesterday he went further than previously in posing the question, given that they are legally “sterile”, of whether they are worth having in the first place.
He did take the care to say this was a question “for the judgment of those who establish tribunals, and not for the court” (thus preserving the separation of powers invoked by the Minister for Justice in recent days).
It is highly unlikely that the Oireachtas, which sets up tribunals on the proposal of the government, will establish one similar to the Moriarty or Mahon (previously Flood) tribunals again any time soon.
Despite the fact that both revealed behaviour on the part of politicians and others that fell short of ethical, to say the least, they were unable to impose any sanctions and, as the Supreme Court ruled again yesterday, their findings could not be used in other legal proceedings leading to sanctions.
Therefore, it can be said that they are legally “sterile”, and their only achievements have been to bring to light behaviour which has reflected badly on some of those whose activities were inquired into.
As a result, the public is a lot more cynical about politicians and their relationship with the rich and powerful, but there is little evidence that much else has changed.
Yet when things go badly wrong, people still want to know why and, where possible, to find out who was responsible.
Some form of tribunal or inquiry is often demanded, and the word “inquiry” is also often preceded by “public”.
The problem with public inquiries is that allegations made before them are aired publicly and can be extremely damaging, even if at the end of the process they are found to be without foundation.
Unsurprisingly, people who are called before tribunals demand the right to legal representation.
Though they are meant to be inquisitorial, they inevitably become adversarial, leading to the problems referred to by Mr Justice Hardiman and others.
On the other hand, private inquiries, like those carried out into the handling of sex abuse within the Catholic Church, do allow people to give evidence without prejudicing their right to their good name.
Their findings still have impact and provoke governmental action, arguably to greater effect than public tribunals.
They are clearly the way of the future.