Tuesday, 22 January 1985
Dáil Eireann Debate
An Ceann Comhairle: Deputy MacEllistrim has been given permission to raise on the Adjournment the following matter which was the subject matter of a Private Notice Question which he submitted today and which read as follows:
To ask the Minister for Justice if he will have legal costs made available to the Hayes family of Dromcunnig, Abbeydorney, County Kerry, in the tribunal which is being held in Tralee in the Hayes baby case.
I ruled that that matter was in order on the Adjournment in so far as it related to the question of the costs of the inquiry. I must make it clear, however, that any discussion on the matter at issue before the inquiry or the conduct of the inquiry by the judge or anybody else would be very much out of order because it is clearly a matter which is currently sub judice. I ask Deputy MacEllistrim and any other Deputy contributing to please bear in mind what I have said. Otherwise I will have to bring the debate to a conclusion.
Mr. MacEllistrim: A Cheann Comhairle, I should like to thank you for giving me permission to raise this matter on the Adjournment. This is a Private Notice Question I put down to the Minister for Justice and to the Government. I wish to request the Minister for Justice and the Government to have legal costs made available to Joanne Hayes and the Hayes family of Dromcunning, Abbeydorney, County Kerry, who are involved in the judicial tribunal which is being held in Tralee.
The case is known as the Kerry babies case. The Hayes family are in pretty poor circumstances and they are not in a position to meet the legal costs involved in this tribunal. As a family they are going through a very difficult time, and they should not be subject to the additional worry of the costs of the tribunal. It is  very unfair of the Government to make a decision to hold a judicial inquiry without making legal costs available to the Hayes family, and particularly to Joanne Hayes, who are the principal witnesses in this case. Joanne Hayes is there as a witness and not as a defendant. She seems to be a citizen alone fighting for herself. In my county Joanne Hayes has tremendous support from the people of her own parish in Abbeydorney and, indeed, tremendous support from the people of County Kerry.
Mr. MacEllistrim: She has a great deal of support from people all over the country. I appeal to the Government to answer this question and to alleviate some of the suffering and worry this unfortunate family are going through. There is widespread public disquiet about the insensitive treatment being given to the witnesses in the Kerry babies case.
Mr. McEllistrim: I am sorry, I will get away from it. It is very important that the Government should make a decision here tonight to have the legal costs paid for the Hayes family. They are under great strain and it would be a great help to the family if they got an assurance here tonight from the Minister for Justice on behalf of the Government that legal costs will be made available to them. I know the judge is to make a decision at the end of the tribunal about the legal costs, but at this stage the Hayes family are going through enough without having to worry about whether or not legal costs will be made available to them. I am not trying to pre-empt the decision of the judge at the end of the case, but the Minister for Justice could prevent a great deal of worry and trouble by making a decision on behalf of the Government to have legal costs made available to the Hayes family.
Mr. Foley: I wish to thank my colleague, Deputy McEllistrim, for giving me some of his time to enable me to support the points he has made. The Hayes family and the gardaí at the centre of the Kerry babies tribunal will be liable for thousands of pounds in legal costs. When the Minister announced in this House the setting up of the tribunal I specifically asked that the legal costs of all parties involved should be covered by the Government. All parties involved have been under terrible pressures and strains during this inquiry. Now they have to face massive bills for legal expenses. This adds to the pressures on them. Their own individual financial position would not permit them to meet this financial burden which will have to be met by somebody at the end of the tribunal.
Does the Minister appreciate the severe mental pressure which is being exerted on all the witnesses at the tribunal because of their uncertainty about the question of legal costs? With the tribunal going on for so long and with costs mounting daily, the time has come for the Minister to clarify the Government's position on the question of costs. I appeal to him to make an announcement tonight on this point. Justice must not only be done but must be seen to be done to all parties involved in this tribunal. It was established by the Government, and witnesses called who have to employ expensive legal representatives to ensure that their legal rights are fully protected should not have to suffer financially. Surely the Government will accept and honour their obvious financial responsibility and not pass the buck to the learned judge in charge of the tribunal. The Government decided to seek to find out the truth in this sad situation and they must be liable for that privilege. A Cheann Comhairle, in view of what you said at the outset I will refrain from mentioning the present trend of the tribunal and the treatment of witnesses, but they are of great concern not alone in Kerry but throughout the country.
Minister for Justice (Mr. Noonan,: Limerick East): While I appreciate the  concern of Deputy McEllistrim — and Deputy Foley — that must have prompted him to raise this matter, I have to remind the Deputy and the House generally that I dealt very fully with this matter when moving the Resolution to have the Tribunal of Inquiry established and in fact, in replying to the debate, I dealt specifically with questions raised in relation to the legal costs of the parties to the case — for the record, all that is to be found in column 2194 of the Official Dáil Report of the debate for 11 December 1984.
As I explained then, the tribunal has power under section 6 of the Tribunals of Inquiry (Evidence) (Amendment) Act, 1979, to direct that the costs of any person appearing before it should be paid by any other person, including the State, when, having regard to its findings and other relevant matters, it considers it equitable to do so. As I said previously, there is therefore a clear legal framework for having the question of legal costs, and who should pay them, determined and in the circumstances it would be inappropriate for me to make any comment on this question pending the completion of the inquiry and the issuing by the tribunal of any directions which it might decide to make under the power conferred on it by the statutory provision.
That is the way that the Oireachtas saw fit to deal with this matter when enacting the relevant legislation in 1979 and, whether we like it or not, that is the law  and we are bound by it. My own view is that it is right in principle that the question of who should bear the costs should be decided by the tribunal and that it is right that such a decision should be taken in the light of the findings of the tribunal and on the basis of what the tribunal thinks is fair and reasonable. The judge constituting the tribunal will have heard all the witnesses and in the course of setting out his findings will have decided where the rights and wrongs of the situation lie. He is the person who will, therefore, be best placed to decide this matter.
I do not think it is right to expect the Minister or the Government, in the light of the clear provisions of the law, to say any more about this at this stage — certainly commitments cannot be given about the costs of any of the parties — and we should remember that there are other parties and that, so far, only part of the evidence has been heard.
I would also make the point that the inquiry is in progress at present and that all persons who have an interest in the issues have been allowed by the tribunal to be legally represented before it and have an equal level of legal representation. There is no question, therefore, of any party being deprived of adequate legal representation for lack of means.
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