Public must pay the price without calling the tune

World of Politics with Harry McGee

It seems yet again that there is no such thing as a perfect public inquiry; somebody pays for it eventually, in money terms, or in human terms – and that somebody is invariably Joe Public.

A little over a decade ago, the then-Minister for Justice Michael McDowell effectively ended the heyday of tribunals of inquiry when he established commissions of investigation.

At the time the tribunals were costing the Exchequer €47 million each year (and that did not include third party costs).

With the prospect of the two big behemoths – Moriarty and the Planning Tribunal – running up overall bills running into the billions of euro, there was a political imperative to do something.

In the intervening years, the Supreme Court has struck down some of the key findings made by tribunals, bolstering the view of critics that they ineffectual and horrendously expensive.

There was a lot of merit to McDowell’s legislative response. The Commissions of Investigations Act 2004 removed many of the elements that had made tribunals into lengthy unwieldy luxury items.

In the new Commission, the investigation and hearing phase of a commission was to be held in private, unless there was a compelling reason for part of it to be held in public. It meant the adversarial nature of tribunals was removed. In practical terms it also allowed a commission to hear from witnesses without them being lawyered up.

Thus the Commission could approach the theme in a slightly less legalistic atmosphere. The legislation emphasised cooperation and compromise but did allow for more formal legal solutions in situation where agreement could not be reached. So a commission has sufficient powers (with the relevant sanctions) to comply the production of documents or to ensure a witness cooperates. But it is in the last resort.

The new approach, as outlined in the legislation, did ultimately not give the chair all the same powers as the chair of a tribunal, who has similar powers to a High Court judge. Indeed, in some cases such as the Nyberg Commission into the banking collapse, the chair has come from a non-judicial background.

Until now, there has not been an issue with the extent of power of a commission. In fact, there have been some very good Commissions, notably the Nyberg Commission into the banking collapse.

For more, read this week’s Connacht Tribune.