History tells us an Oireachtas inquiry would almost certainly end in shambles, cost a fortune and last an age, writes VINCENT BROWNE
THE SCALE of the banking catastrophe is such as to demand a full public inquiry to determine how it happened, who is to blame and what we can do to ensure it doesn’t happen again.
But the proposal to get the people to pass a constitutional amendment to permit a committee of the Oireachtas to undertake such an inquiry and then to have such an inquiry would be a serious error and probably frustrate a satisfactory outcome forever.
Before proceeding with this plan, Enda Kenny and Eamon Gilmore (for it is these two who will decide this, not the Cabinet and not the Dáil – for that is how our dysfunctional system works) should have a look at a case some years ago involving a Mr Haughey. Not the well-known late Mr Haughey, but his late brother Pádraig, better known as Jock.
Jock appeared before the Dáil committee of public accounts in 1971 to answer allegations made about him in connection with an attempted importation of arms into Ireland the previous year.
He applied to the committee to be given leave to cross-examine witnesses who had given evidence against him. The committee refused and Haughey then refused to answer any questions. The committee certified to the High Court that Haughey had committed an offence under a 1970 act in refusing to give evidence. The High Court convicted Haughey and sentenced him to six months imprisonment. He appealed to the Supreme Court.
The Supreme Court held Haughey was right. The Supreme Court also stated that the minimum protection that the State should afford a witness in such circumstances were fourfold: (i) that he should be supplied with a copy of the evidence which reflected on his good name; (ii) that he should be allowed to cross-examine witnesses; (iii) that he should be allowed to give rebutting evidence; and (iv) that he should be permitted to address the committee (via counsel if he wished) in his own defence.
Even if the people were to pass a constitutional amendment permitting a committee of the Oireachtas to conduct inquiries which could infringe on the good name of a citizen (a more recent judgement of the Supreme Court held Oireachtas committees could not do that), the Oireachtas committee would still have to afford witnesses, against whom allegations were made or likely to be made, the full protections that the Jock Haughey case laid down. And among the entitlements would be that such witnesses should be afforded the right to be represented by lawyers, that the State would have to fund these lawyers (except in certain circumstances) and that all the legal paraphernalia attaching to tribunals would apply to Oireachtas enquires as well. In other words, at least as expensive and at least as drawn out. But worse than that.
It is almost certain that an Oireachtas committee so empowered would run into all kinds of legal difficulties, which would be referred to the High Court and Supreme Court in quick time, over and over again. And those legal difficulties would focus in part on the inevitable perception of bias on the part of a committee that was, from the outset, hostile to some of the key witnesses.
The bias would arise from the inevitable fact that the committee would be composed of a huge majority from the government parties – reflecting their huge Dáil majority – and the fact that some of the key witnesses would be from the main opposition party.
Witnesses such as Bertie Ahern, Brian Cowen, Charlie McCreevy and Brian Lenihan.
A main piece of investigatory armoury is and would be the cross-examination of witnesses, which is a practised skill that few outside the legal profession have reason to acquire.
So either the Oireachtas members would undertake cross-examination themselves and thereby probably fail to elicit the information required, or employ lawyers to do so, which raises the point what is the point then of an Oireachtas inquiry?
And there is the further point that the conclusion of any such committee would be perceived as biased, because of the inbuilt prejudice of Oireachtas committees, especially given the huge imbalance of Dáil representation now.
An Oireachtas inquiry would almost certainly end in a shambles, cost a fortune and last an age – actually there is the further problem that the inquiry might outlast the term of the present Dáil which would mean a new Dáil would have to start all over again! The Law Reform Commission published a report on inquiries in 2005. It has made several recommendations on the conduct of tribunals of inquiry and has proposals whereby costs can be minimised and time shortened.
So without further ado, just appoint a judge – I suggest one from the following: Peter Kelly, Frank Clarke, Adrian Hardiman and Peter Charleton – and have them involved in drafting the terms of reference. Then give them a budget and timetable and tell them they are expected to work within those constraints, if at all possible.
The end of 2012 would be sufficient time.
Lawyers should not be paid more than €100,000 a year (with no paid overtime) and only those witnesses against whom serious allegations of wrongdoing were likely to be made should be granted legal representation.
And let’s find out the full truth.