Jim Higgins (Fine Gael)

I thank the Cathaoirleach for choosing this item on the Adjournment.

Last Tuesday's High Court judgment has landed the issue of legal costs for the attendance at the Morris tribunal of Mr. Frank McBrearty and the McBrearty family firmly back in the lap of the Minister for Justice, Equality and Law Reform and his Government colleagues. There seldom has been a more sympathetic judgment from a judge who found himself and the tribunal totally constrained by the absence of law and the Constitution from doing what he clearly wanted to do, namely, accede to the request that in terms of their unique and particular situation before the tribunal, the McBrearty's legal team should be paid legal costs on an ongoing basis in order that they could be fully and properly represented before the Morris tribunal. The judge's comments could not have been more sympathetic, clear or unequivocal. In regretfully refusing the application, Mr. Justice Michael Peart said:

I do this with great regret as nobody could but have sympathy for the parlous position in which the applicant and his family find themselves. The extent of the inquiry, both as regards the time involved as well as the vast amount of documentation with which they have been served does indeed put them in a position of some uniqueness compared to the facts of the case on which I must decide the issue in this case.

If there was any way in which a point could be stretched in relation to the various issues I have to decide, so as to find that the position of the applicant and his family was so different as to not require me to follow the decisions to which I have referred, I would have been prepared to do so, not just in the interests of the applicant, but in the interest of the Tribunal itself. I say this because it seems to me that if the applicant does not have the benefit of the services of solicitor and counsel for the duration of the Tribunal and leading up to its commencement, the burden of assisting the applicant and his family will fall to the Tribunal, its solicitor, counsel and staff, and their work will be greatly increased and indeed it is likely that the work of the Tribunal could thereby take longer to complete. Conversely, if the applicant had the benefit of a reasonable level of representation, the work of the Tribunal might be eased. However, the Government has refused to assist the applicant, the legislation does not permit the Tribunal to assist ahead of making findings and the case law does not permit of an exception in the applicant's case under Article 40.3 of the constitution. I therefore refuse the relief sought.

It is clear from the utterances of Mr. Justice Peart that he is extremely sympathetic to the case put by the McBrearty's legal team and believes it would not alone be in the interests of the McBrearty family but also in the interests of the Morris tribunal proceedings to have the family legally represented before it. It is also clear that there is no impediment on the Minister for Justice, Equality and Law Reform deciding to acknowledge the particular and peculiar difference between the McBrearty family's position and that of everyone else before the tribunal. The same arrangements can be made as the ad hoc arrangements made by the British Government in similar circumstances.

Bunreacht na hÉireann is a citizen's guarantee of equality of rights and treatment. In continuing to refuse the McBrearty application in respect of legal costs, there is no equality of treatment. It is blatant discrimination. When one considers that the Garda Commissioner, the Garda Representative Association, the Association of Garda Sergeants and Inspectors have all been granted legal representation, one has to query the rationale and motivation behind the decision to deny the McBrearty's the same level of representation and have their legal team paid on an ongoing basis. The Minister for Justice, Equality and Law Reform, the Garda Síochána Complaints Board and every single emanation of the State before the tribunal have been granted full and individual legal representation. At the same time, a family with no legal experience or grounding will be expected to have themselves subjected to hostile cross-examination without the presence of a legal team.

There are clear precedents within this jurisdiction for what the McBrearty family is seeking in terms of payment for legal representation. What they are seeking is what was granted to families of the Stardust disaster and the blood tribunal. There never was any justification for the State refusing the reasonable legal costs arrangement being sought in respect of the McBrearty family. In the light of Tuesday's High Court decision, there is now absolutely no reason for continuing to so refuse. This was argued cogently in the House yesterday morning by our eminent colleague, Senator Maurice Hayes.

The tribunal may be called the Morris tribunal but to the ordinary citizen and in the public's perception it is the McBrearty tribunal. It is about the manner in which the State deliberately set out to accuse Frank McBrearty junior and his cousin, Mark McConnell, of a murder they never committed. It is about the State's vendetta against them and their licensed premises by bringing more than 160 liquor licensing charges against them, hauling them before court after court only to have each charged subsequently withdrawn by the Director of Public Prosecutions but, as a consequence, wrecking their business. It is about the emotional trauma and torture visited by the State on an innocent family which has been left with psychological scars that will never be erased. It is about the truth and whether the State, having wrongfully slandered, victimised and destroyed the McBrearty family, is now prepared to grant them the level of legal representation to which they are clearly and constitutionally entitled in order to establish who was responsible for what happened and the reason such a despicable and evil plot was contrived and persisted with.