Martin Mansergh (Tipperary South, Fianna Fail)

I am supportive of the Bill on the basis that it is properly and thoroughly discussed and not rushed because it is very important. I was encouraged by the broadly constructive contribution of Deputy Rabbitte who, if I understand him correctly, said he would support the Bill provided there was written into it an assurance that it did not apply to sitting tribunals. In response to one of his points, if, as is the stated intention, the main existing tribunals will draw to a close over the next 12 months or so, this is the proper time to consider the basis on which such tribunals will be conducted in the future. From my knowledge of the academic world, I think there might be about a dozen theses written about tribunals. I do not think there are hundreds — that might exhaust it.

That contribution contrasted with the previous contribution of Deputy Flanagan which seemed to show a total inability to treat the issue on its merits and was simply unremittingly partisan in nature and with little constructive content about the reform of tribunals or any recognition of the necessity of it, apart from a passing reference to commissions of investigation.

Nothing I will say is a reflection on the good work done in tribunals or the conscientious efforts made by lawyers, judges or other parties to attain or ascertain evidence and to try to draw secure conclusions. It is normal in debates, where relevant, to declare an interest. This immediately raises a slightly awkward problem in that tribunals wish to keep their correspondence with witnesses confidential. Some years ago one of the tribunals was in correspondence with me in relation to a matter I dealt with as a special adviser on Northern Ireland. Needless to say, nothing I say will be influenced in any way by that. In passing, some derogatory reference was made to special advisers by Deputy Flanagan. I was a policy adviser not just a political adviser and I believe that I provided some value for money. It is a complete distortion to think that they are solely or mainly spin doctors giving partisan political advice. They are people who are genuinely concerned to solve problems. That was just as true of, say, the programme managers and advisers that served the Labour Party when we were in government with that party.

It is obvious tribunals need reform and the problems extend beyond this jurisdiction. At a media conference a few years ago, a well known journalist declared there was tremendous competition among journalists to find material for the next tribunal. I, of course, draw a distinction between tribunals that are related to mainly political matters and other tribunals which, while perhaps having great social importance, are not as politically sensitive.

The Flood-Mahon and Moriarty tribunals have lasted nearly ten years, a length far beyond anything envisaged when they were being set up, and the Bloody Sunday tribunal in Derry has also lasted many years. All of them have cost hundreds of millions. It is safe to say that while people will continue to demand them, and in certain instances in regard to the North the Government has supported them, as a matter of practical reality there will be no more such tribunals unless the basis on which they are conducted is reformed. The notion that they are a shortcut to truth through curtailing legal procedure has proved to be something of a mirage.

Much has been said inside and outside this House — I am not referring to anyone present — about the immense superiority of the English common law system, which we in this country share. As one who spent time studying the French legal system, I am not so sure. Indeed, as I stated previously in the House, I have huge admiration for the work of the investigating judge in Spain, Baltasar Garzón. It would be interesting to explore whether the system of an investigating judge or magistrate could be grafted on to our system, although probably the Law Library hands would go up in horror at the suggestion.

Some of the best tribunals and commissions are ones that are admirably short. I thought the report of the McCracken tribunal, which sat for no more than three or four months, was admirable and its conclusions were universally accepted. I can think of an analogous body, although it was not a tribunal, namely, the Mitchell commission which reported on decommissioning. That took about six weeks and it stood the test of time. It is not necessarily the case that tribunals and commissions which last a very long time, go into vast detail and cost a great deal of money are the best.

The problem with tribunals, certainly so far as some of the principals are concerned, is that the rights of individuals come into play. The way tribunals are conducted is potentially seriously prejudicial to people's reputations, a point that has been made in various recourses to the High Court and so on. There is a sense that no appeal is possible, except perhaps to public opinion, from a judgment of a tribunal and that the usual recourses are not available. In some way, from a humanitarian point of view, I am glad the Moriarty report on Charles Haughey was not produced until after his decease.

We all extend our sympathies to Deputy Michael Lowry on the recent loss of his mother. Deputy Lowry has suffered Chinese torture over the past ten years, during which his reputation has been in suspense because the tribunal, for various reasons, not all its own fault, has taken so long in coming to a conclusion. Such inordinate delays are very unfair, although they are not entirely peculiar to tribunals and can happen in courts of law. The case of a constituency colleague in south Tipperary is being deferred repeatedly, which is not fair to him.

There is also the fact that tribunals can come to very trenchant judgments — sometimes one might even consider them cavalier and crowd-pleasing judgments. Although it is not in the least a popular point to make, I was shocked that the Flood tribunal report on the former Deputy and Minister, Ray Burke, simply came to the conclusion, which was vociferously welcomed in the press, that he was corrupt even though it stated it had not been able to find any actions corresponding to the funds he had been given.

Naturally, it is never an opportune time to reform the law on tribunals. The Government is now doing so but that does not protect it from the accusations it is trying to control criticism or acting for some short-term partisan advantage. In the case of the Opposition there may be no particular advantage for it in this regard. I welcome the Minister's courage in bringing forward the Bill.

We have had much debate inside and outside this House with regard to costs and the remuneration of higher civil servants, office holders and so on. However, some of the tribunal lawyers are better paid than any of the categories mentioned. The former Minister for Finance, Charlie McCreevy, and the former Deputy, Michael McDowell, as Minister for Justice, Equality and Law Reform rather than as Attorney General, attempted at one point to rein in from a certain date lawyers' fees but found they had to pull back. Our Attorney General is not paid a daily rate on the basis of what he could earn in the courts, nor, for that matter, are judges. While this is only hinted at in the Minister's speech, there is much to be said for having salaried barristers work for tribunals for two or three years. There would then be an automatic limitation of at least some of those costs.

See this speech in context