There is a sub-theme that "the innocent have nothing to fear" in the Flood tribunal's defence of its orders against Dublin West TD Mr Liam Lawlor, including an order directing him to appear before tribunal lawyers and answer questions, the High Court was told yesterday.
Mr Adrian Hardiman SC, for Mr Lawlor, said there was an implication that a person should be prepared to have their baggage emptied on to the street by investigators and checked and there was no need for complaint if there was no contraband in the baggage.
In his challenge to the tribunal, Mr Lawlor was raising serious legal issues, counsel said. The Flood tribunal was also being challenged by the Criminal Assets Bureau and a previous tribunal had been challenged by the government itself over the issue of Cabinet confidentiality.
Counsel was concluding his replies to submissions from the tribunal on the final day of Mr Lawlor's challenge to the orders made by tribunal chairman, Mr Justice Flood. Mr Justice Kearns reserved his judgment to July 2nd.
Mr Hardiman said what was at issue in the case was Section 4 of the Tribunals of Inquiry (Evidence) Act 1979, which stipulates a tribunal chairman may make such orders as he considers necessary for the purpose of his functions and, in relation to their making, shall have all the rights and privileges of the High Court in respect of the making of orders.
He was not arguing the section was unconstitutional. His argument was that it conferred on the tribunal only the powers of the High Court. If the section permitted the tribunal to compel Mr Lawlor to answer questions from tribunal lawyers in circumstances where he had no detailed information of the allegations against him and where failure to comply with the order could lead to two years' imprisonment, that would be unconstitutional.
The tribunal was flexing its investigative muscles and what was happening was in no sense preliminary. It was evidence, not information, gathering. It was disingenuous to suggest it might not go to public hearing.
Closing for the tribunal, Mr Patrick Hanratty SC said when the tribunal chairman decided it was necessary to make a certain order, he was not creating an offence. Disobedience of that order could lead to an offence.
He said there was no comparison between this case and the challenge by the CAB.
He denied that the tribunal chairman had delegated his functions to tribunal lawyers or that the latter had dual functions in relation to tribunals.