Wednesday, 13 April 2005
Dáil Eireann Debate
I ask the Minister to make provision for legal representation for the McBrearty family at the Morris tribunal. The Taoiseach stated in the Dáil this morning that his legal advice was that the tribunal alone could allocate costs after a particular module was completed. I do not dispute this advice regarding the power of the tribunal but ask that an arrangement be made similar to that made by the then Minister for Health and Children in April 2000 with the Irish Haemophilia Society regarding the Lindsay tribunal which enabled the society and its members to be legally represented for the duration of the tribunal. The arrangement worked perfectly well and a similar arrangement was made with regard to the victims of the Stardust fire in 1981. It may not be fully within the Minister’s remit, but I am asking that the Morris tribunal briefly adjourn its activities while a suitable formula is worked out for granting legal representation.
The Morris tribunal was set up in 2002 mainly to deal with the injustices perpetrated on the McBrearty family by agents of the State. It has now been sitting for 320 days and at no stage has the McBrearty family received legal costs although they must attend daily and co-operate with the tribunal at all times. Television cameras recently showed a car boot containing reams of documents served by the tribunal on Frank McBrearty senior. Members of the family must research vast quantities of documentation and argue their case without the benefit of legal training or representation. At the same time, Mr. Justice Morris, the Minister for Justice, Equality and Law Reform, the Garda Commissioner, the Association of Garda Sergeants and Inspectors and the Garda Representative Association have all retained teams of lawyers for the duration of the tribunal.
The McBrearty family are no ordinary witnesses at the tribunal; they are at the heart of the Morris inquiry. Garda treatment of this family prompted the Morris tribunal to be established by the Oireachtas in 2002. What happened to the family over a sustained period is a grave matter of public importance. It is ironic and perverse that the McBreartys are the only participants who do not have the benefit of legal representation. They are discriminated against. Legal costs are now a barrier to justice for the family.
What is the value of proceeding with a tribunal that does not allow for meaningful engagement by the people at its heart? What credibility can its final report have? A fortune has already been spent by the State on legal costs and there is little sense in spending more money on an inquiry that has become quite farcical. Tribunals for the average citizen who is personally exposed as distinct from being sheltered by the State or by representative organisations have come to the point of being inoperable. We have a real problem which will not be resolved by the Minister burying his head in the sand or quoting law. It is time to recognise the reality, be brave, do the proper thing and stand by the spirit of Article 40 of the Constitution which states that “All citizens shall, as human persons, be held equal before the law.”
Mr. McGinley: I thank Deputy Costello for giving me some of his very limited time. As a Donegal Deputy for almost a quarter of a century, I cannot be accused of jumping on every available bandwagon. However, I agree with the case which has been made so well by the Deputy. I reflect the opinion of most reasonable people in Donegal who I meet in my everyday line of duty.
The McBrearty family has gone through so much over the past eight years. They have been wrongly accused of murder, had their premises raided and their son was obliged to make a bogus confession to murder. There are a myriad of other points which I cannot go into but the Minister is aware of them all. The family has a basic human requirement, namely, legal representation.
I have only been in the courts once in my life. It is intimidating to go in and see the benches of legal people, senior counsel, barristers, solicitors and legal brains of this country. Frank McBrearty senior is an ordinary man. He emigrated at the age of eleven and earned enough money to start a small business in a Border town. He has survived thus far, although his finances and health must be in a very precarious state. The man must have the constitution of a horse.
I am told that some sort of legal technicality prevents the family from getting this basic right. I do not know whether it is in the Minister’s power. I have no other agenda. I am a Deputy in the county although the family is not in my constituency. The Minister is one of the top legal men in the country. Surely some device is available to crack this nut and let the inquiry continue. The findings will be devalued and tarnished if the inquiry carries on without the McBreartys being represented.
Mr. McDowell: The position with regard to legal costs for the family in question has been raised on many occasions in this House. Before dealing with the costs issue, it might be helpful if I outline for the House the current position in regard to the tribunal as I understand it. Mr. McBrearty senior gave evidence to the tribunal last week. He returned yesterday and, having completed giving his evidence, he did not make himself available for cross-examination by counsel for the other parties but withdrew from the tribunal.
I understand that the tribunal has, as of today, finished hearing oral evidence in regard to the current module, which is called the Barron investigation module, and will hear final submissions shortly with a view to making a further report in the very near future.
It is regrettable that Mr. McBrearty has taken this course. In regard to legal representation for him and his family, the position is clear and the ground, as I said, has been traversed in this House on a number of occasions.
The family applied for, and was granted, a right to legal representation at the outset of the tribunal’s business in the summer of 2002. It chose to exercise that right and was fully represented by counsel during the opening of the current module in Donegal in the summer of 2003. Work on that module was discontinued in September 2003 until June 2004, while the tribunal completed its hearings and published its report on the hoax explosives finds module.
I understand that the family has not been represented by counsel since the resumption of the Barron module in June 2004. I am not clear as to why the counsel and solicitors retained by the McBreartys failed to appear when the module resumed. If the legal team was demanding to be paid up front, I would be very surprised. Having undertaken to appear and having appeared on a different basis, it would be very unusual for a legal team to withdraw halfway through its retainer. As I will make clear, the tribunal has been dealing with the costs of each module at the close of each module. Accordingly, I stress no lawyer whose client co-operates with the tribunal will experience any undue delay in receiving payment. On the contrary, because the tribunal is dealing with costs on a modular basis, the legal team could expect prompt payment of its reasonable costs on the same basis as other witnesses with rights of representation. I also understand the tribunal made efforts at various times in recent months to secure the services of counsel who would act on behalf of the family, but this, however, was not acceptable to the family.
While I have stated it previously, I must make it clear once again that I do not have powers in regard to the granting of costs. Under the terms of the Acts, the question of costs is solely a matter for the tribunal. This has important practical implications for tribunals generally in their search for the truth. The Acts provide that a tribunal which, having regard to its findings and all other relevant matters, is of the opinion that there are sufficient reasons rendering it equitable to do so, can order the whole or part of the costs of representation of a person appearing before it to be paid, and those costs are then paid.
A tribunal, when determining whether costs should be paid, may take into account failure to co-operate with or to provide assistance to or knowingly giving false or misleading information to the tribunal. As has been observed on previous occasions, the net effect of this is that reasonable legal costs of participants are effectively guaranteed in advance provided those persons co-operate and are truthful in their dealing with the tribunal.
It is clear from the chairman’s judgment on the costs associated with the first module to which I referred that he regards co-operation with the tribunal and truthfulness in giving evidence as matters of paramount importance. In deciding on costs, he made deductions in some cases and rejected other applications where he was of the opinion that persons deliberately lied or otherwise hindered him in his efforts to get to the truth.
Interfering with it, however well-intentioned one’s motives might be, would blunt the effectiveness of the tribunal in uncovering the truth. I appreciate that we are here discussing one family with a particular experience of the kind outlined by Deputy McGinley. However, there must be a clear and consistent principle behind the policy on the payment of costs which is applicable generally and not just to one individual. The Deputies should remember that I have consistently maintained that policy in the face of High Court challenges from a number of other parties to the Morris tribunal. This House will be aware that other witnesses attempted to force me into paying their costs in advance. They failed to persuade the High Court that they had any such entitlement.
I hope the McBrearty family — I met some members of the family but I do not want to go into that because it was a private meeting — can draw some comfort from the tone of the first report. Clearly the tribunal will be forthright in its comments and criticisms and will not hesitate to apportion blame where it considers it is necessary on the basis of the evidence before it. I reject the suggestion that the tribunal is in any way farcical or that its findings will be in any way undermined or devalued by the question of the representation or non-representation of one set of witnesses. On the contrary, I have no doubt that it will be an extremely fair report and that the tribunal will be extremely vigilant to help those people who are not represented to ensure that their interests are vindicated.
Mr. McDowell: On the question of legal representation for the family, I would have expected that the family would be reassured by the prompt manner in which Mr. Justice Morris addressed the issue of costs arising out of the first module. It is clear that the chairman is well aware of the issues of the various parties with regard to their legal costs and has acted expeditiously. Costs are being dealt with on a module by module basis and are not being held over until the tribunal finally concludes its business in a number of years’ time. This is clearly of significant assistance to all witnesses who have representation before the tribunal.
Other parties have secured legal representation at the tribunal and will have the payment of their costs assessed in the manner I outlined. The McBrearty family is being treated no differently from other witnesses to this or other tribunals when it comes to the issue of legal representation and the payment of legal costs.
I understand that the tribunal is making significant progress and on this basis I again encourage the family to participate fully and to co-operate with the tribunal to the greatest possible extent. I note this evening that it has been suggested that I am being obdurate. However, I am satisfied that I am correct in upholding the authority of the tribunal. I am equally satisfied that if the McBrearty family for some reason will not accept legal representation on the same basis as other parties, the tribunal will be scrupulous in protecting its interests and in establishing the truth without such participation.
The system of awarding costs in tribunals is very fair and generous and, in the case of the Morris tribunal, very prompt in discharging the costs of co-operative witnesses. There has been public controversy concerning the massive legal resources that the State makes available to co-operative witnesses. However, it would be wholly wrong for me having refused some witnesses their costs in advance and having defended these cases in the High Court now to select another set of witnesses for special treatment——
It is a matter of profound regret to me that for one reason or another these issues should continually arise in this House. I want to make it clear that I will not change my mind. It would be grossly unfair of me to change my mind at this stage, having taken a stance against others on exactly the same territory. The tribunal’s work is far too important for me to interfere in a manner which could very easily be characterised as grossly arbitrary, having said to some people, including garda witnesses and people who have since resigned or been dismissed from the Garda Síochána that I would not pay their costs in advance.
Mr. McDowell: It would be wrong for me to say that I would make an exception in respect of other people who had counsel and solicitors working for them whose counsel withdrew for some reason that I still cannot understand, bearing in mind what I was used to when I was a barrister in practice. I cannot now reverse course and suddenly select one group of people for treatment, and I will not do so. The sooner that is understood and acted on and the sooner everybody concerned gets to co-operate with the tribunal the better. I am convinced of one thing, there will be a fair report——
Mr. McDowell: ——from that tribunal and the fact that lawyers for some reason or another were not willing to act for the McBreartys when other lawyers were willing to act for other people in similar circumstances will not affect the fairness or the validity of the tribunal’s findings. I have said on a number of occasions in this House, and I repeat it, that I am not for turning on this issue. It would be wrong for me to do so. It would be extremely unfair to some people against whom I have taken exactly the same stance who do not have public sympathy on their side.
Mr. McDowell: I will not interfere arbitrarily in this tribunal’s affairs in a manner which would undermine its authority to get at the truth because the truth is what everybody in this House wants to see established.
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