Role and brief of counsel representing the public interest need to be clarified

ONE of the most frequently made comments by those who are following the McCracken Tribunal is that there is little visible evidence that many concerns of the public about matters given in evidence are reflected in the proceedings of the tribunal.

We were told there would be counsel there to represent the "public interest". And there are. But we simply do not know what their instructions are. Nobody doubts their competence or integrity or their fidelity to the instructions given to them with their briefs. Few can state with certainty what exact role those counsel see themselves fulfilling.

Presumably they were given instructions on their function - and presumably in writing. Was this done by the office of the Attorney General?

It would seem from what has happened so far that they regard themselves as confined to some role which involves keeping the tribunal on the straight and narrow as regards the Constitution, the law and the legal rights of the citizens. They seem to eschew any interest in what I might term the substantive - as distinct from the procedural - concerns of the public. Such a narrow view of the "public interest" begs many questions.

Just who is there to test the evidence given by the witnesses - if necessary to test that evidence to destruction? Whose role is it to cross examine those whose evidence looks strange or implausible? Is there a "devil's advocate" to query some of the more questionable evidence? Is there anyone there whose function it is to query the tax implications of what has happened? Or is that to be left to the Revenue Commissioners to work out in secret in the months and years to come?

If Ben Dunne just happened to have £210,000 in three bank drafts made out in fictitious names burning a hole in his golf trousers, are we to leave it at that? And if he just gave them to Charles Haughey as a spur of the moment pick me up, are we content to leave the issue of his motivation just hanging there?

Whose job was it to ask Noel Fox searching questions about his firm's certification of Dunnes Stores accounts or, for that matter about his appointment to a State board? Who has really investigated the entirety of Dunnes Stores dealings with the State and local authorities at the relevant times? Are we to blandly accept on faith that one of the largest commercial entities in the State had no potential interest at all in buying influence?

If both a Taoiseach, Mr Haughey, and later a Minister, Mr Lowry, were in the financial palm of a superrich, sugardaddy figure, is that not worthy of an extremely skeptical and far reaching cross examination of that figure based on background investigation?

The public are somewhat bemused by the astonishing tableaux that are being enacted before their eyes in Dublin Castle? They want to see the quality, reliability, and plausibility of the evidence tested in public.

A series of uncontested assertions is just not adequate to meet the public's concerns - insofar as someone, somewhere has decided that the public interest must be narrowly construed as differing from the concerns of the public.

Similar problems were evident in the context of the BTSB tribunal. Likewise, at the beef tribunal there was a very inelegant public game of "pass the parcel" between counsel for the tribunal and counsel for the State as to which of them held the responsibility for upholding the public interest.

Dail Eireann established this tribunal to report back to it. We did that because we saw issues of huge importance on which the truth needed to be established. We were never given an opportunity to instruct counsel to probe the evidence from the perspective that motivated the establishment of the tribunal in the first place. For instance, such counsel might have felt it proper to apply to have Mr Haughey subpoenaed to testify and to face cross examination.

No member of Dail Eireann was consulted on any instructions given to counsel for the public interest. Why not? If we set up a tribunal, have we no say as to what may even be submitted to the chairman of the tribunal as to the meaning of its terms of reference?

Things might have been better if the matter had been thrashed out in public before now. It's not too late to get it right.

But there is a growing feeling that the tribunal's proceedings badly need the skepticism that normally is supplied by an adversarial element.

English tribunals have adopted the system of having one counsel to "lead" the evidence, and another counsel to "test" it by a searching course of questioning. Maybe that could be done by the McCracken Tribunal.

If, as appears to be the case, counsel for the public interest have instructions that confine them to a narrow role, we are entitled to know that. We are also entitled to know their instructions. We are entitled to know who decided their instructions. These matters should be published now in the public interest.

If we are relying on counsel for the tribunal to pursue the real concerns of the public and of the public representatives who established the tribunal, there may be a strong case for a different modus operandi in Dublin Castle. A light dab of an investigative feather duster is not enough.

The whole idea of a judicial tribunal is that it be independent - even of the Dail which established it. Fair enough. But its mandate is a democratic one - to inquire into and test, and report back convincingly on the motives for and circumstances of the payments which were made.

It is not easily understood by many that this task can be accomplished satisfactorily if the inquisitorial role is confined to that already evident in Dublin Castle.

The extent to which Ben Dunne's evidence was or was not tested seems to have been decided in large measure by the attitude of Charles Haughey.

That is all very well in adversarial litigation between two private parties; it does not suffice for an inquisitorial vindication of the public interest.