Thursday, 6 February 2003
Adjournment Matters. - Morris Tribunal.
The Morris tribunal will shortly commence its public hearing of what exactly the Garda was up to in relation to the deliberate and wrongful attribution of blame to the immediate and extended McBrearty family in the matter of the death of Richie Barron. It will also investigate the planting of explosive devices across the Border in Northern Ireland, the planting of an explosive substance on the MMDS mast at Ardara and a host of other serious allegations.
I welcome the establishment of the tribunal and wish it well in its deliberations. As the person who first and persistently raised activities in County Donegal and asserted that the only way to establish the truth was through a tribunal of inquiry, I am passionate in my desire to see it fulfil its brief. However, it will not be able to do so unless the persons central to its deliberations are properly represented legally throughout its proceedings.
Much credit for getting us to this juncture must go to the McBrearty legal team which clinically and thoroughly exposed the manner in which the State had scandalously vilified and attempted to convict a completely innocent family. It had destroyed family members' reputations and good standing in the community and left their business in tatters. For the best part of five years the McBrearty legal team had fought its clients' case, challenged their arrests and, eventually, vindicated their innocence. As the State wrecked the McBrearty business, the legal team representing the family has not received a single penny in payment of the substantial costs incurred. The McBrearty family is central to a huge segment of the tribunal's proceedings, the reason they must be legally and properly represented.
Lawyers, like other professionals, must put food on the table. One cannot expect them daily to commit unpaid to a tribunal which might continue for years. There are clear precedents for some form of interim payment, as happened in the case of the Stardust tribunal in 1981 and the Lindsay tribunal. The Stardust happened to be in the constituency of the then Taoiseach. If such a payment is not made in this case, the McBrearty family will not be at the tribunal rendering it largely meaningless and a waste of taxpayer's money.
On 18 December last Irene Khan, secretary general of Amnesty International, wrote to the Minister for Justice, Equality and Law Reform indicating that Amnesty International would send Professor Stephanie Farrier as an observer to the tribunal. It expressed major reservations at the manner in which the issue of legal representation was being dealt with. It also expressed a long held view of mine that the terms of reference of the tribunal should include examination of the respective roles of the then Minister for Justice, Equality and Law Reform, Garda Commissioner, Attorney General, Director of Public Prosecutions and Donegal State Solicitor. The failure to include the performances of those in senior executive positions while this sordid saga was unfolding in the terms of reference of the tribunal is incomprehensible. If people have nothing to hide, why should they not have their respective performances examined by the tribunal?
The intervention of Amnesty International is highly significant and very embarrassing. The fact that a respected international human rights organisation has deemed it necessary to make its strongly held views forcefully known to the Government must encourage it to respond positively with regard to the two areas which are of grave concern. I urge the Minister to bring an amendment before the Oireachtas to expand the tribunal's terms of reference as recommended by Amnesty International and put in place a scheme of interim payments to provide the McBrearty family with proper legal representation permitting it to appear before Mr. Justice Morris.
I have been asked by the Minister for Justice, Equality and Law Reform to apologise to Senator Higgins for his inability to address this matter directly in the House and to reply to the Senator on his behalf. A letter dated 18 December 2002 was sent to the Minister for Justice, Equality and Law Reform by Amnesty International, the subject of which was the Morris tribunal and to which a detailed reply issued recently. It would not be appropriate, however, to discuss the details of the correspondence in the House at this time.
The Minister has asked me to address the specific issues the Senator raised regarding the terms of reference of the tribunal and legal representation for the McBrearty family. The McBrearty family have initiated a number of civil actions in the High Court for damages arising from events in County Donegal and, to the best of my knowledge, have full and adequate legal representation for those proceedings. As regard the Morris tribunal of inquiry, the onus to establish the facts and inquire into the matters in question falls on the tribunal. Nevertheless, tribunals of inquiry have the right to authorise legal representation for any person appearing. This is done, in particular, where a person's good name may be called into question. The Morris tribunal has, on application to it, granted representation for 67 persons or bodies, including the McBrearty family.
The question of costs is determined by the Tribunals of Inquiry (Evidence) Acts 1921 to 2002 which allow a tribunal which is of the opinion that, having regard to findings in all other relevant matters, there are sufficient reasons rendering it equitable to do so to order the whole or part of the costs of representation of a person appearing before it to be paid. A tribunal, when determining whether costs should be paid, may take into account failure to co-operate or provide assistance for or knowingly giving false or misleading information to the tribunal. In effect, therefore, the reasonable legal costs of participants are effectively guaranteed in advance provided the persons concerned co-operate with the tribunal, although actual payments are not made in advance.
I understand we cannot show favouritism to any particular individuals, nor can we prejudge the case of individuals. Equity requires that all parties to the tribunal be treated equally. To cover in advance the reasonable legal costs of all parties would be to pre-empt the power of the tribunal not to award costs to those who do not co-operate and undermine its greatest power in its search for the truth. The truth, after all, is what the tribunal is about. Counsel for the tribunal has already made it clear that establishing the truth in the Donegal affair will be of particular difficulty and I will not support any proposal that may hinder the tribunal in carrying out the tasks assigned to it by both Houses of the Oireachtas
Both Houses of the Oireachtas passed a resolution on 28 March 2002 providing for the establishment of a tribunal under the Tribunal of Inquiry Act to inquire urgently into certain defined matters of urgent public importance relating to complaints regarding some gardaí of the Donegal division. These defined matters constitute the terms of reference of the tribunal and are based on the recommendations of a senior counsel who was nominated by the Bar Council and examined all the relevant papers held by the Garda Síochána, the Department and the Garda Complaints Board.
There are two methods of amending the terms of reference of a sitting tribunal which are set out in the Tribunal of Inquiry (Evidence) (Amendment) (No. 2) Act 1998. One provides for the tribunal to request such an amendment. If this happens, the Minister must amend the instrument establishing the tribunal provided an appropriate resolution is passed by both Houses of the Oireachtas. In effect, if the tribunal takes the initiative and is supported by the Houses of the Oireachtas, the Minister has a passive role and must amend the instrument accordingly.
The Act also provides for a second method which may be initiated by the Minister. He may ask the Attorney General to consult the tribunal and if it consents, he may amend the relevant instrument, provided an appropriate resolution is passed by both Houses of the Oireachtas. Either the tribunal or the Minister may initiate the process but in both cases it is clear that the tribunal, in effect, has the final say.
The question of extending the terms of reference was raised by certain parties with the tribunal which stated it could not possibly adjudicate on an application to extend the terms of reference unless material had been advanced as to the reason an extension should be sought. It indicated it would be willing to consider, in particular, arguments or submissions grounded on evidence but that a mere assertion or request for an extension of the terms of reference was not sufficient. At this stage the Minister is not aware of any grounds for amending the terms of reference. If the tribunal encounters any difficulties or new issues come to light, the matter can be reconsidered.
The existing terms of reference are not restrictive. It is a matter for the tribunal to determine how it carries out its tasks but it is open to it to examine the role of any and all State agencies in the matter specified in the terms of reference. In this regard, counsel for the tribunal is already in the process of interviewing all persons who held the office of Minister for Justice, Equality and Law Reform during the periods in question and that the Department of Justice, Equality and Law Reform has been asked, and is providing, statements for the tribunal on all the issues coming within the terms of reference as well as discovering all relevant documentation.