Seanad Éireann - Volume 172 - 15 May, 2003

Adjournment Matter. - Morris Tribunal.

  Mr. Higgins: 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.

  

Minister for Justice, Equality and Law Reform (Mr. M. McDowell): I have made clear on a number of occasions my position on this issue and see no need to re-examine the situation. I offered to meet with Mr. McBrearty in Donegal and subsequently met him in my office. It was agreed the meeting would be private. I explained the situation to him in what I consider to be circumstances of some considerable politeness, sympathy, truthfulness and honesty.

  The Morris tribunal is a tribunal of inquiry, not a court of law. It is inquisitorial, not adversarial. The onus to establish the facts and inquire into the matters in question falls on the tribunal. Senator Higgins referred to constitutional rights to equality and the demands of the Constitution in this regard. The Constitution is being upheld in respect of every approach I am adopting. I reject the suggestion that I am, in some sense, acting contrary to its spirit or that I am in breach of anybody's constitutional rights. If constitutional rights existed entitling Mr. McBrearty to the relief referred to by the Senator, he would have been accorded them by the courts because the courts accord people their constitutional rights.

  Tribunals of inquiry have the right to authorise legal representation of any person appearing to them to be interested. 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 opinion that, having regard to its findings and all other relevant matters, there are sufficient reasons rendering it equitable to do so, to order 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 with, or provide assistance for, or knowingly giving false or misleading information to the tribunal. The reasonable legal costs of participants are, therefore, effectively guaranteed in advance provided the persons concerned co-operate with the tribunal, although actual payments are not made in advance.

  There are two recent High Court judgments on the question of the timing of payments for legal representation before the Morris tribunal. Superintendent Lennon sought a declaration that he was entitled to have funding on an ongoing or week by week basis for his legal representatives at hearings before the tribunal. The High Court in a judgment delivered on 2 May 2003 found that he had no such entitlement. I understand Mr. McBrearty also applied to the High Court to have his legal costs arising from the tribunal paid on an ongoing basis and that the High Court in a judgment delivered on 13 May 2003 rejected that application.

  I cannot show favouritism to any particular individual, nor can I prejudge the case of particular individuals. The Senator has, in his remarks to this House, prejudged all the issues. He said he was speaking on behalf of a victim and has castigated the people involved as the perpetrators of an evil plot.

  

Mr. Higgins: Rightly so.

  

Mr. M. McDowell: The Senator may think so. There is no point in having an inquiry if he has decided on all the issues.

  

Mr. Higgins: We would not have had an inquiry.

  

Acting Chairman: The Minister, without interruption, please.

  

Mr. M. McDowell: I remind the Senator that he is an officeholder in Parliament. It is not right to prejudge an issue when a tribunal of inquiry has been established to decide where the truth lies.

  

Mr. Higgins: At my instigation.

  

Mr. M. McDowell: The Senator cannot have it both ways. He cannot say he wants a fair inquiry in which Superintendent Lennon's rights are upheld and in the next breath say that because he has prejudged the issue I should make orders in a particular direction. The time has come for him to face up to the truth. He is attempting to prejudge the issue and embarrass me into making a decision which would be deeply and profoundly unfair. I cannot justify aiding Mr. McBrearty in this matter while at the same time refusing to do so in relation to Superintendent Lennon. There would be no justification for doing so. The learned High Court judge is free to express his opinions on what he would do if he was in my position. I have to uphold the law, the Constitution and the integrity of the tribunal. I am not here to load the dice against one person or treat one person more favourably than another before the truth has been established.

  I was approached by lawyers, solicitors and barristers in my capacity as Attorney General, and now in my capacity as Minister for Justice, Equality and Law Reform, asking if there was any way they could become involved in a tribunal. There are queues of people who want to be involved. I am surprised that there is not a legal team willing to represent any party in the tribunal on the same basis that all other parties are represented, namely, if the client behaves in a co-operative manner with the tribunal, his or her costs are virtually guaranteed. I am surprised that among the legal profession there is not a group of people willing to act in this manner on a basis which has been applied to Members of this House in other tribunals and right across the board. I am surprised and a little disappointed in that regard.

  Equity requires that all parties to the tribunal be treated equally. What I give to Superintendent Lennon I should be willing to give to Mr. McBrearty and vice versa. I will not distinguish between them on the basis that the Senator, one of the co-sponsors as a Member of the Oireachtas of the tribunal, has arrived at the view that one is more innocent than the other or that one is more hard done by than the other. The tribunal must establish where the truth lies. 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. 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.

  I am adamantly opposed to what is being urged upon me by Senator Higgins. I am upholding the decisions of both Houses. It is open to any member of the High Court Judiciary to express his personal views about what he would do in my case. However, I must treat Superintendent Lennon on the same basis that I treat Mr. McBrearty. I suddenly cannot say that because Senator Higgins thinks one of the parties is more hard done by than the other in the current circumstances—

  

Mr. Higgins: The judge thought so.

  

Acting Chairman: The Minister, without interruption.

  

Mr. M. McDowell: Senator Higgins must realise that the judge was not deciding that issue. I have to decide how to deal with people on a costing basis. I have to hold the scales evenly between them. He was not being asked to decide on that matter. The judge's remarks are, with respect to him, obiter. He did not have to decide that issue, but I am charged with doing so. If I go down the road of aiding some people involved with this tribunal by paying their costs as matters proceed, I could not morally justify doing so by reference to some prejudgment that they had been treated in a worse fashion that others involved in the process.

  When the Senator sorts himself out intellectually in respect of that distinction, then he will come to the conclusion that I am acting fairly, impartially and in the interests of the tribunal by taking this approach in the case of Superintendent Lennon, which I defended successfully in the High Court, and in that of Mr. McBrearty, which I also defended successfully in the same forum. Any other option would be profoundly wrong for me to take.

  

Mr. Higgins: I am disappointed that the Minister for Justice, Equality and Law Reform is a prisoner of his own Dickensian thinking. I have sorted myself out intellectually; I know the case inside out. Has the Minister read Mr. Justice Peart's judgment of 13 May? Is his decision unilateral in nature or did he discuss it with his Cabinet colleagues?

  

Mr. M. McDowell: It falls to me to make the decision on this matter, as it also fell to me to make the decision to fight this case. I have read the passages to which the Senator referred and reflected upon them. I was briefed on this matter yesterday and have had time to think about it. I am adamant that the point I am making applies. I reiterate, in vehement terms, that if I cannot distinguish between the position in which Mr. McBrearty finds himself and that of Superintendent Lennon, then I cannot do it. If that is the case, there is no point coming before the House and stating that I should do differently.

  Senator Higgins referred to the Constitution on a number of occasions. I have to treat citizens equally under the Constitution. The courts are there to tell me if I am wrong or if I have erred and to correct me if I treat people in a discriminatory way under the Constitution. I am not discriminating between the two cases. I fully defend the reasonableness of the decision I made.

  I invite the Senator to reconsider the simple question of how I could possibly prejudge the issue and say – adopting all the Senator's prejudgments in this case – that one person has been badly done by and has been a victim of a plot by the State, while the other is alleged to have been a perpetrator. How could I give legal assistance to the person who claims to be the victim and give no assistance to the person who is claimed by the victim to be the perpetrator? How could I defend this decision in the courts or anywhere else? It is intellectually indefensible and legally unsustainable and I do not propose to make that mistake. If I adopted the Senator's suggestion, I would end up in the High Court defending the indefensible.

  The Seanad adjourned at 4.05 p.m. until 2.30 p.m. on Tuesday, 20 May 2003.