The courts do not adequately protect the rights of people being investigated by tribunals or of witnesses before them, a conference on tribunals and the right to privacy has been told.
The conference, "Inquiries: The Rights of Individuals, Publicity and Confidentiality", organised by the Bar Council of Ireland, was held in Dublin on Saturday.
Mr Paul Gallagher SC said the right to privacy was undermined by the very basis on which tribunals could be established. "The catch 22 with tribunals is that if they can only be set up to inquire into matters of urgent public importance, then by definition the essential purpose of the tribunal involves the element of public interest in defeating wrongdoing or inquiring into important matters of national or public interest, matters which have been held on so many occasions to be sufficient to outweigh the right of privacy, and more particularly the right of confidentiality," he said.
He said the Supreme Court had ruled that the Oireachtas assumed that tribunals conducted their investigations in accordance with the principles of constitutional justice and of fair procedure, and would only interfere with the rights of their subjects to the extent necessary for the proper conduct of the inquiry.
However, that did not solve the privacy problem, he said. "These procedures may help one to ultimately vindicate one's good name, but it does not protect one from the `distress and injury to reputations' caused as a result of the making of baseless allegations."
There was nothing to prevent the legislature legislating to entitle tribunals to hear certain evidence in private. There should also be a requirement that there was a prima facie basis for allegations before they were aired in public.
"In its frenzy to root out supposed wrongdoing and in its desire to reintroduce a modern-day version of the medieval village stock where supposed and actual wrongdoers can be pelted with our collective venom and distaste through the mouths of tribunal counsel, society should not lose sight of the larger and more fundamental issues involved. The twin objectives of rooting out wrongdoing and respect of the right to privacy are not incompatible."
Mr Rory Brady SC told the conference that when the present tribunals were over, the Government should consider referring the law of tribunals to the Law Reform Commission.
On the issue of privacy, the tribunal should be able to require the media to correct any published error of fact. The media should benefit from this in the context of libel laws, protecting them from prosecution for libel where such a correction had been published.
He suggested that as part of a series of measures to limit the cost of tribunals, the Government should establish a statutory inspectorate to investigate matters of fact and only seek a full-blown judicial inquiry when the inspectorate could not resolve disputed fact.
Tribunals should also be empowered to serve notices to admit fact and notices to admit documents on all parties appearing before them. This would reduce the need for public hearings.
"Those with deep pockets have greater access to media consultants," he said. They should not be able to recover this from the Exchequer.