Purpose of mother and baby commission should have been made clear

Amid all the recent coverage of the 50th anniversary of the Arms Crisis, one of its legacies that is perhaps better remembered by lawyers than historians is the effect of the affair on the law relating to public inquiries, the problems with which have again been demonstrated in the recent controversy over the mother and baby homes report.

Following the acquittal of all defendants in the second arms trial, in October 1970, the Dáil ordered the Public Accounts Committee to conduct a wider inquiry into what had happened in order to address the many questions left unanswered by the criminal trial. One of the witnesses summoned to appear was Charles Haughey’s brother, Paraic (or “Jock”), who refused to answer any questions put to him by the committee on the grounds that he could face legal consequences arising from those answers.

His refusal was upheld by the Supreme Court which ruled, as every law student learns, that the constitutional right to fair procedures applies not merely in a court context, but also in “proceedings before any tribunal where a party to the proceedings is on risk of having his good name, or his person or property, or any of his personal rights jeopardised”. What became known as the “Re Haughey” rights, therefore, required that a party before a public inquiry has the right to notice of the evidence against them, to confront and cross-examine their accusers, and to address the inquiry in their own defence.

Scrutinised

The difficulty, however, is that those procedural rights and rules of evidence are designed to work, and work best, in individual cases, where allegations of wrongdoing can be scrutinised and tested in a manner which protects the rights of all. Where, however, the allegations are numerous, and particularly where they stretch back over years or even decades, full compliance with these rights and the rules of evidence is much more difficult if not impossible. In such cases, properly applying these rules may mean either that no conclusions can be drawn at all, or that the process in reaching those conclusions will be far greater in time and costs than initially envisaged.

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In any case where widespread allegations of systemic or historic wrongdoing are made, therefore, there will have to be something of a compromise between the need to find out what happened and the rights of any party alleged to have been involved in that wrongdoing.

The traditional means of achieving this compromise was of course the tribunal of inquiry model under the Tribunals of Inquiry (Evidence) Acts 1921 to 2011. This allowed for a more informal approach to procedures and evidence on the grounds that the eventual report could make findings of fact, but was otherwise “legally sterile” in that it could not make binding determinations on the rights or liabilities of any of the parties. Furthermore, any statements made to the tribunal or its investigators were not admissible against that person in any future criminal proceedings.

Legal sterility

The problem with this, of course, is that the legal sterility of a tribunal report may be of little comfort to a party whose reputation is attacked in the course of the hearings or in the report itself. Given that a tribunal of inquiry is only established in response to matters of “urgent public importance”, its hearings will (at least in its early stages) attract significant media attention, and there is every scope for the good name of the parties to be affected in a manner that requires their Re Haughey rights to be protected. The effect of this, of course, was to contribute to the length and expense of inquiries such as the beef and Mahon tribunals in the 1990s, with the effect of adding to rather than allaying public concern.

If there is a solution, it lies not so much with amending the law

An alternative form of inquiry by Oireachtas committee had some success in the deposit interest retention tax (Dirt) inquiry in 2001, but again ran into trouble in the Abbeylara case in 2002 and more recently in the manner in which the Public Accounts Committee questioned former Rehab chief executive Angela Kerins.

In an effort to reduce the costs of public inquiries, the Commissions of Investigation Act 2004 was enacted to provide an alternative investigative mechanism in which the inquiry would be heard in private, but the eventual report could be published. The aim of this was to reduce the need for legal representation at the hearing stage, but as the mother and baby homes report demonstrates, it did not resolve the central problem that if public findings of wrongdoing are going to be made against any party before a commission, the procedural rights of that party must be protected. And the more serious the finding, the greater that protection must be, with a knock-on effect on the time and expense of the inquiry.

Managing expectations

What the above demonstrates is that, regardless of which form of public inquiry is adopted into systemic or historic wrongdoing, there will always be a tension between the need to discover the truth of what happened and the protection of the rights of the parties before that inquiry. If there is a solution, it is not so much with amending the law, as the precise evidential and procedural requirements will always be something of a grey area, and will have to adapt to the circumstances of the matter under investigation. Rather, it is with managing expectations from the outset, making it clear whether the purpose of the inquiry is to address individual grievances, or to learn wider lessons for society for the future, and drafting the terms of reference accordingly. Doing so in a focused manner at the beginning can save much time and expense in the course of the inquiry, and help avoid disappointment at its conclusion.

John D Fitzgerald is a senior counsel