Like them or loathe them, tribunals have become our defining mechanism of legal redress. But now they might be about to disappear, suggests Paul Cullen
It seems hard to credit now, but in the 1970s a tribunal set up to investigate allegations of corruption sat for less than a day. The venerable Justice tasked with inquiring into claims made by two Fianna Fáil TDs about Labour minister Jimmy Tully, opened proceedings at 10 a.m. on the appointed day and finished his work by noon. Soon after, he declared the allegations false.
If only such speed could be achieved these days. Modern-day tribunals measure their lifespan in years and decades, rather than days and months. Likewise, their costs can be assessed in tens of millions of euro, rather than the modest amounts originally envisaged.
If tribunals were universally regarded as effective forums for investigating allegations, this might be understandable. But they are not so perceived, which makes their proliferation and popularity all the more surprising.
Nonetheless, this has been the year of the tribunals - the good, the bad and the downright bizarre. In the year of a dull, lacklustre election, the interim report of the Flood tribunal shone like a bright penny. While politicians thrashed about with clichés, evasions and stunts, Mr Justice Flood's report glistened with clarity and plain talking.
Its "corrupt, corrupt, corrupt" finding against former Fianna Fáil minister Ray Burke caught everyone by surprise and captured the imagination of the public. People queued to buy the document as though it were a bestseller, only three months after an election in which corruption had failed to register as an issue. By the end of the year, it had in fact become a bestseller, with over 25,000 copies sold, albeit at a subsidised price of €1.
It was all such a contrast to the publication of the Lindsay report only weeks before. Judge Alison Lindsay's investigation into how more than 260 haemophiliacs were infected with HIV and hepatitis C through contaminated blood products was released to howls of anger from those most affected.
Although the Minister for Justice, Michael McDowell, and other lawyers came to the defence of Judge Lindsay, the majority response to the report was negative. Special criticism was reserved for the limp, passive language used in the report, its handling in a few pages of the testimonies of those who were infected by blood products and its failure to make meaningful recommendations. For many tribunal-watchers, it was the beef tribunal all over again, with so much money, time and effort expended to produce something that didn't hold anybody accountable.
Both the Flood tribunal and the Moriarty tribunal were in recess for most of the year, with lawyers continuing their investigations into various allegations in private. But whereas Mr Justice Flood's report obliterated any bad press his tribunal might have attracted up to then, his neighbour in Dublin Castle, Mr Justice Moriarty, has yet to prove he too can call a spade a spade.
With no sign of the tribunal's verdict on Charles Haughey - and no sign that Haughey is going to pay an appropriate price for what most people have already decided are his wrongdoings - the true worth of the Moriarty tribunal remains to be determined.
This month, it began what looks like being a lengthy investigation into the awarding of the second mobile phone licence to Esat Digifone by the former Fine Gael minister, Michael Lowry.
Whatever the outcome, it is remarkable how badly Fine Gael is faring currently in both the Moriarty and Flood tribunals. Fianna Fáil has clearly had its bad apples, but Fine Gael shows no sign of a viable alternative when it comes to sleaze, or at least the perception of it.
Last month, the Morris tribunal started hearings into allegations of Garda corruption in Co Donegal. The opening statement heard a series of bizarre and conflicting allegations by the main parties, and was followed quickly by a refusal of the central figures, the McBrearty family, to take part.
By the end of the year, there were 10 tribunals or inquiries underway, with calls for more to be established into specific allegations of medical malpractice and child abuse and the disposal of dead children's organs in hospitals.
Most of the tribunals are staffed by lawyers working for anything up to €2,500 a day. The cost is enormous, though some tribunals have produced financial benefits for the State. Mr Justice Flood, for example, was quick to point out that the Revenue Commissioner and the Criminal Assets Bureau had collected €37.5 million in taxes and penalties arising from investigations by the tribunal.
There remains the question of what happens after someone is found by a tribunal to have done wrong. In any public discussion or radio phone-in I have participated in, the public demand for restitution, even vengeance, has been palpable. It is no use explaining that Ray Burke has been exiled from the only world he knows, that of politics, or that the developer, Michael Bailey, has paid millions in fines and unpaid taxes.
Quite simply, shaming and fining are not regarded as sufficient punishments by the public; only the jailing of malefactors will do for many of them. It is doubtful whether any system of justice can meet the demands of the pent-up anger of the citizenry at the corruption that has been revealed.
So why have some tribunals worked better than others? And is there any other way of dealing with controversies in our society?
It seems to me that public scrutiny is crucial to a successful outcome. In the case of the Flood tribunal, for example, the revelations of James Gogarty provided the initial impetus for a wider investigation into Ray Burke. Further revelations led to an expansion of the tribunal's work to cover allegations against all politicians and public servants. The head of steam developed by the tribunal was enough to "crack" Frank Dunlop and show Liam Lawlor the door to Mountjoy. The interim report marked another milestone, as well as sending out a clear warning to future witnesses about the dangers of lying or not co-operating.
In contrast, the Lindsay tribunal, by its nature of less interest to the broader public, never got out of second gear.
It is doubtful whether Michael McDowell can maintain this element of public scrutiny under his new proposals for an alternative to the tribunals. The public has little enough trust in the system as it is, without having most of the investigations carried out in private.
The other big question is whether McDowell's proposed new investigative body can command the same respect enjoyed by the legal profession in full flight. It can be taken for granted that the new system will be challenged in the courts by those who come under its scrutiny.