Government must postpone public tribunal until after new law to slash legal fees
In rushing headlong into setting up a tribunal of inquiry into the Maurice McCabe scandal using outdated legislation, the Government is acting in its own interest and not the public interest.
For the past decade, Sgt Maurice McCabe and his family have suffered, in his own words, "great suffering, private nightmare, public defamation and State vilification".
With allegations that a smear campaign reached all the way to the top echelons of An Garda Síochána, and may also have involved child protection agency Tusla, a tribunal is essential in order to restore public trust in these important State institutions.
However, the Government, having just this week resolved that an inquiry held in secret behind closed doors is not sufficient to assuage public concerns about the breadth and extent of this campaign, is now moving with unseemly speed to set up a tribunal.
Gone, suddenly, are all of the previously widely held concerns about the excessive length and expense of tribunals. The only concern of the Government is stemming the tide of political controversy, which threatens to overcome it, by quickly establishing a tribunal of inquiry.
Acting with undue haste on this issue will invariably result in the Government repenting at leisure. If history has taught us anything, it is that tribunals, all of which have been set up to investigate "urgent matters of public importance", quickly become unwieldy, complex and costly.
There is no reason to believe this tribunal will be any different, despite the undoubted expertise and diligence of everyone involved.
It doesn't have to be like that. Cognisant of the problems that have dogged previous tribunals, the Law Reform Commission examined the law relating to public inquiries and came up with more than 50 recommendations. The result of this comprehensive review was the Tribunals of Inquiry Bill 2005, which passed second stage in the Dáil in 2009 and has been awaiting report stage ever since.
Among the significant changes included in the bill is a provision that legal fees can be capped and that lawyers, who wish to act for tribunals, should undergo a competitive tendering process, thereby greatly reducing costs.
Currently, tribunal reports are relatively legally inert, but the bill allows them to be used in civil proceedings as prima facie proof of the facts and conclusions set out within them - meaning there can be no argument about the weight that should be accorded to that evidence by a court.
While existing law is silent on the issue of independence, the bill also places the independence of tribunals of inquiry on a statutory footing and requires that terms of reference be drafted as precisely as possible, ensuring the meandering, never-ending tribunals of the past are eradicated.
Additionally, the bill also proposes that tribunals be given discretion to permit the broadcasting of proceedings, having regard to the interest of the public in having the best available information on the matters under investigation.
If this legislation were in its infancy, there would be no realistic prospect of it being enacted in time to be used for the forthcoming tribunal into the McCabe scandal.
However, in May 2015, Justice Minister Frances Fitzgerald told Social Democrat TD Róisín Shortall that the bill was awaiting report stage and her department was engaged in "detailed consideration" of a "number of issues relating to developments in the law relevant to tribunals".
Despite this, on Tuesday, when Sinn Féin TD Pearse Doherty raised the prospect of any new tribunal being set up using this consolidated and up-to-date legislation, Ms Fitzgerald told him that would cause an unacceptable delay. This is nonsense.
Maurice McCabe has waited nearly a decade to have the State treat his complaints with the seriousness they deserve. A delay of a few more weeks while this bill is enacted will make little difference, but could result in a much more efficient, cost-effective, purposeful and powerful report for the public.
Given the Government should spend at least a couple of weeks considering the terms of reference and remit of the McCabe tribunal, surely the Tribunals of Inquiry Bill can be worked on simultaneously?
Twelve years after the bill was first published, and nearly two years after those detailed considerations in the Department of Justice, what is stopping the Government acting with uncharacteristic alacrity and enacting this long overdue legislation?