The central argument in Mr George Redmond's case against the Flood tribunal was an attempt to push the boat of fair procedure out further than it had been taken before. He claimed that fair procedure required that the tribunal hold a private inquiry into the allegations against him (no doubt with attendant delay, expense and opportunity for leaks) before deciding whether to proceed to a public inquiry.
Rejecting this claim, the Supreme Court held that it was reasonable for the tribunal to ground its decision to hold a public hearing on a sworn affidavit, rather than holding a private inquiry. Indeed, the court remarked somewhat caustically: "It would have been surprising if the tribunal had decided otherwise."
Mr Redmond's claim was a rather hopeful one since the trend in the law has been largely in favour of openness. Articles 34.1 of the Constitution states: "Justice shall be administered . . . save in special and limited cases, in public."
I hasten to add that a tribunal of inquiry is not administering justice, but it is striking that this constitutional provision has been used on some occasions when the kind of frank evidence being given in a court and often reported in the media would certainly damage a person's reputation and even put irresistible pressure on one party in the case to settle to save damage to his or her reputation.
Thus in respect of their own proceedings, courts have taken a strong line in favour of the policy that justice must not only be done; it must be seen to be done.
Now, if there is a heavy weight in favour of publicity in court proceedings, involving, directly anyway, a few individuals, how much more significant is this policy in the case of a tribunal whose object is to expose all relevant information on a matter of high public interest?
This is recognised in the Tribunals of Inquiry Act, 1921, which states: "A tribunal shall not refuse to allow the public to be present at any of its proceedings unless in the opinion of the tribunal it is in the public interest expedient so to do."
The Constitution - with its conditional right to privacy - was wheeled in by Mr Redmond to try to trump the 1921 Act. However, the court remarked that the exigencies of the common good outweighed the constitutional right to privacy "particularly when an inquiry is necessary to preserve the purity and integrity of public life".
There is a minor point which makes the court's decision even more significant. It is that the legal proceedings before it - the application for judicial review - took the form of a two-stage process.
First comes the application for leave. This serves as a filtering device to sift out cases where the court considers the applicant lacks even a prima facie claim.
Naturally, most cases succeed at this stage and sometimes attract misleading head lines as if the applicant had actually carried the day. In fact, the main substantive contest comes only at the second stage. But here the Supreme Court, like the High Court, ruled that Mr Redmond did not even jump the first hurdle.
The essence of this case is that it is one more instance of the tension between the interest of one individual in his reputation and, on the other hand, the authority of an impartial tribunal, set up by the Oireachtas, to go about its duties in the public interest, in the way it considers best.
The unusual feature is that on this occasion, the tribunal won.
David Gwynn Morgan is Professor of Law at the National University of Ireland, Cork
