Michael McDowell (Dublin South East, Progressive Democrats)

The position with regard to legal costs for the family in question has been raised on many occasions in this House. Before dealing with the costs issue, it might be helpful if I outline for the House the current position in regard to the tribunal as I understand it. Mr. McBrearty senior gave evidence to the tribunal last week. He returned yesterday and, having completed giving his evidence, he did not make himself available for cross-examination by counsel for the other parties but withdrew from the tribunal.

I understand that the tribunal has, as of today, finished hearing oral evidence in regard to the current module, which is called the Barron investigation module, and will hear final submissions shortly with a view to making a further report in the very near future.

It is regrettable that Mr. McBrearty has taken this course. In regard to legal representation for him and his family, the position is clear and the ground, as I said, has been traversed in this House on a number of occasions.

The family applied for, and was granted, a right to legal representation at the outset of the tribunal's business in the summer of 2002. It chose to exercise that right and was fully represented by counsel during the opening of the current module in Donegal in the summer of 2003. Work on that module was discontinued in September 2003 until June 2004, while the tribunal completed its hearings and published its report on the hoax explosives finds module.

I understand that the family has not been represented by counsel since the resumption of the Barron module in June 2004. I am not clear as to why the counsel and solicitors retained by the McBreartys failed to appear when the module resumed. If the legal team was demanding to be paid up front, I would be very surprised. Having undertaken to appear and having appeared on a different basis, it would be very unusual for a legal team to withdraw halfway through its retainer. As I will make clear, the tribunal has been dealing with the costs of each module at the close of each module. Accordingly, I stress no lawyer whose client co-operates with the tribunal will experience any undue delay in receiving payment. On the contrary, because the tribunal is dealing with costs on a modular basis, the legal team could expect prompt payment of its reasonable costs on the same basis as other witnesses with rights of representation. I also understand the tribunal made efforts at various times in recent months to secure the services of counsel who would act on behalf of the family, but this, however, was not acceptable to the family.

While I have stated it previously, I must make it clear once again that I do not have powers in regard to the granting of costs. Under the terms of the Acts, the question of costs is solely a matter for the tribunal. This has important practical implications for tribunals generally in their search for the truth. The Acts provide that a tribunal which, 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, can order the whole or part of the costs of representation of a person appearing before it to be paid, and those costs are then paid.

A tribunal, when determining whether costs should be paid, may take into account failure to co-operate with or to provide assistance to or knowingly giving false or misleading information to the tribunal. As has been observed on previous occasions, the net effect of this is that reasonable legal costs of participants are effectively guaranteed in advance provided those persons co-operate and are truthful in their dealing with the tribunal.

It is clear from the chairman's judgment on the costs associated with the first module to which I referred that he regards co-operation with the tribunal and truthfulness in giving evidence as matters of paramount importance. In deciding on costs, he made deductions in some cases and 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.

It is crucial for the effectiveness of that tribunal that this power is not undermined.

Interfering with it, however well-intentioned one's motives might be, would blunt the effectiveness of the tribunal in uncovering the truth. I appreciate that we are here discussing one family with a particular experience of the kind outlined by Deputy McGinley. However, there must be a clear and consistent principle behind the policy on the payment of costs which is applicable generally and not just to one individual. The Deputies should remember that I have consistently maintained that policy in the face of High Court challenges from a number of other parties to the Morris tribunal. This House will be aware that other witnesses attempted to force me into paying their costs in advance. They failed to persuade the High Court that they had any such entitlement.

I hope the McBrearty family — I met some members of the family but I do not want to go into that because it was a private meeting — can draw some comfort from the tone of the first report. Clearly the tribunal will be forthright in its comments and criticisms and will not hesitate to apportion blame where it considers it is necessary on the basis of the evidence before it. I reject the suggestion that the tribunal is in any way farcical or that its findings will be in any way undermined or devalued by the question of the representation or non-representation of one set of witnesses. On the contrary, I have no doubt that it will be an extremely fair report and that the tribunal will be extremely vigilant to help those people who are not represented to ensure that their interests are vindicated.

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