Bertie Ahern (Dublin Central, Fianna Fail)

We will bring it forward. I wish to answer the questions put by Deputies Kenny and Costello and give the legal advice I have received from both the Department of Justice, Equality and Law Reform and the Office of the Attorney General. I am not giving any of my own views on this matter in which I have not been involved. It is important and I have read the report which has come up before. This is the position and I hope it is helpful to the McBrearty family and the public at large in understanding the issue.

The position in regard to the family in question has been raised previously in the House. I understand the current position is that Mr. Frank McBrearty senior gave evidence to the tribunal last week but is now no longer taking part in the process because his legal costs are not guaranteed. The facts of the matter are quite clear. The family concerned applied for and was granted a right of legal representation at the outset of the tribunal's business in the summer of 2002. Under the terms of the Tribunals of Inquiry (Evidence) Acts 1921 to 2002, the question of costs is solely a matter for the tribunal. This is not only the legal position but it also has important practical implications for tribunals in the search for the truth.

The Acts allow that where a tribunal, having regard to its findings and all other relevant matters, is of the opinion that there are sufficient reasons rendering it equitable to do so, it may order the whole or part of the costs of representation to a person appearing before it to be paid at the end of each module. A tribunal, when determining whether costs should be paid, may take into account failure to co-operate or provide assistance to or knowingly give false or misleading information to the tribunal. In this regard, it is worth noting that in the Chairman's judgment in relation to the costs associated with the first module he regards co-operation with the tribunal and truthfulness in giving evidence as matters of paramount importance. In deciding the costs he made reductions in some cases and totally rejected other applications where he was of the opinion that persons deliberately lied or otherwise hindered him in his efforts to get to the truth.

I have a longer legal note which I can give to Deputy Kenny if necessary. The issue is that the tribunal awards costs at the end of each module so that nobody has to wait for a period of years to be awarded costs. It is vital for the proper operation of the tribunal that the Chairman does not have his powers on costs pre-empted. The tribunal is dealing with all witnesses with scrupulous impartiality.

The only words I add on this matter from my own work, in having dealt with this issue many times, is that if one gives a guarantee before a module, one cannot have circumstances in which the Chairman can make a judgment on whether a person co-operated. It is not possible and that is the advice I have received from the Attorney General.

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