Tribunal mountain

The prodigal cost of the state's tribunal industry is frequently cited by critics as an argument for its abolition. However, an assessment of 16 inquiries finds that it is the lukewarm commitment of politicians that undermines them most. By Justine McCarthy

The state has spent more than €215m on current and completed tribunals, inquiries and commissions under the Fianna Fáil/PD administration but a straight cost-versus-benefit audit indicates that, by the arbiter of tangible results, much of it has been money down the drain.

As politicians dodge questions about alleged corruption and documented systems failures, citing the standard get-out-of-jail excuse that these are matters under investigation, the 13 state tribunals and inquiries in progress will add to an already gargantuan mountain of reports churned out by the phenomenon of Tribunal Culture. The double-bind for the taxpayer is that while, on the one hand, these inquiries are throwing the searchlight onto shady corners that would otherwise continue to rot without any accountability, on the other hand their real benefits are wholly dependent on the will of politicians to implement the recommendations contained in their reports. An assessment of 16 such inquiries shows that, in many instances, the most essential recommendations are left to gather dust on the civil-service shelf. Often, the revelations of past misdeeds, botched plans and policies of neglect are so sensational that the media concentration on them allows for scant ventilation of the recommendations, providing a ready opt-out for the government.

The planning tribunal, for example, which began almost 10 years ago, produced a second interim report in September 2002. In it, Judge Feargus Flood concluded that former minister Ray Burke received bribes from builders Joseph Murphy Jnr and Michael Bailey. In the four years that have since elapsed, nobody has been charged with corruption on foot of that report. Nor has anybody been tried by the courts for obstructing and impeding the tribunal, a finding Flood made against copious witnesses.

On the contrary, businessmen who were exposed as bribe-payers and plotters against the tribunal have been flagrantly fêted by Bertie Ahern and Fianna Fáil at party political fundraisers in the aftermath of the findings. After a decade of scrutinising lucrative land speculation, the mooted establishment of an authority to oversee land rezonings has still not been adopted.

A more graphic illustration of the political establishment's laissez faire attitude to the reports it commissions is in the realm of children's safety. A celebrated 1993 report on the harrowing Kilkenny incest case, by the recently retired Supreme Court judge, Catherine McGuinness, recommended a constitutional amendment to facilitate a charter of rights for children. Three years after that, a Constitution Review Group, appointed by the government, reiterated the proposal. Two years later, in 1998, the UN Committee on the Rights of the Child called for such a charter, repeating it this year in its review of Ireland's treatment of its younger citizens.

During those 13 years, there has been a veritable avalanche of state inquiries into children's protection. Roderick Murphy's 1998 report on the sexual abuse of underage swimmers by two national coaches, George Gibney and Derry O'Rourke, identified an institutional failure by the Irish Amateur Swimming Association (reconstituted as Swim Ireland) to act on victims' complaints. That finding was repeated eight years later in Judge Frank Murphy's report on Ferns, which recommended the establishment of an inter-governmental group to monitor such complaints. That body has still not materialised.

The impression of official foot-dragging is crystallised by the scheduled release from jail next year of Derry O'Rourke, who has been convicted on more child sexual abuse charges than any other offender in Ireland. Sixteen civil actions, initiated by some of his victims after his first conviction in 1998, have still not reached the High Court, adding impetus to a Law Reform Commission recommendation that a provision be made in law for the superior courts to award damages in class actions. Such a measure would empower the courts to investigate multiple cases of injury – like the infection of haemophiliacs and mothers with contaminated blood products, for example – by a common source, rendering dedicated tribunals redundant.

"How many reports do we need?" wonders child-law expert Geoffrey Shannon. "An entire generation of children has grown up since we first started debating the issue of a children's charter. Justice must not only be done but it must be seen to be done and if there is a delay between the conclusion of an inquiry and the implementation of action, that causes concern. Public confidence has been diminishing in recent years."

Judge Fred Morris, who is investigating the behaviour of gardaí in the Donegal division, noted in his second report that "several members of the gardaí continue to serve, despite being severely criticised in the first report and, in most cases, despite having lied to the tribunal". Government spinning has givien the impression that recent radical reforms of the Garda were prompted by the Morris reports but, says University of Limerick law professor Dermot Walsh: "The genesis of these complaints reforms goes back to the late 1990s when John O'Donoghue was minister. It is opportunistic spin to say that the reforms in the Garda Bill are a response to Morris. A whole new body of other reforms is now needed."

When Judge Maureen Harding Clark returned to the Lourdes Hospital in Drogheda three months after handing her report over to the government, she found the HSE had not followed through on her recommendations, as she subsequently told a conference in Dublin. In a similar vein, Judge Robert Barr's trenchant report on Garda mishandling of the Abbeylara siege, which ended with the shooting dead of John Carthy, has not been discussed at any level of the Oireachtas since it was published nearly five months ago.

A lawyer who has worked on a high-profile state inquiry makes the point that, after more than a decade of myriad investigations, no infrastructure has been provided to make the process quicker and more economical. "When a tribunal is set up, the first thing you have to do is find your own premises, literally," says this lawyer. "There is no reservoir of information available, even though the Law Reform Commission has suggested that there should be some central archive of experience and knowledge. It makes it all unnecessarily difficult."

One of the most serious risks associated with state reliance on tribunals and inquiries is that it can make criminal convictions even harder to secure. The DPP's attempt to prosecute Charlie Haughey for obstructing the McCracken tribunal ran aground when the court held that he could not get a fair trail in the wake of extensive publicity.

Anecdotal evidence of the body politic's lukewarm enthusiasm for tribunals serves to undermine them in the public's mind, an impression compounded by the ubiquitous headline-grabbing focus on their cost. On balance, tribunals and inquiries in themselves have proved to be good value for the money, despite the government's slow uptake on the reports. The Ferns report (resulting from a model inquiry costing less than €2m) provided an emotional catharsis, psychological vindication and public affirmation for victims of abusing priests such as Sean Fortune and Jim Grennan. The creation of an offence known as reckless endangerment in the Criminal Justice Act is acknowledged as a direct response to the report's many disclosures of how the Catholic church sheltered priests who raped and assaulted children. The establishment of an inquiry into child sexual abuse by priests in the Dublin archdiocese, chaired by Judge Yvonne Murphy, is another immediate consequence.

Similarly, the comfort value of the Child Abuse Commission – originally chaired by Judge Mary Laffoy and, since she resigned in frustration with the Department of Education, by Judge Sean Ryan – simply cannot be measured. The same can be said of the inquiries into the retention of children's organs and the unnecessary removal of women's wombs.

"For us, the inquiry has been unquestionably worthwhile," says Sheila O'Connor of Patient Focus, which lobbied for the Lourdes Hospital Inquiry into Michael Neary's obstetrics practice. "A lot has happened in 10 years but, when you're changing an entire culture, as is happening with the health service, we're only about 20 per cent of the way there yet. Even that much has been massively worthwhile."

Other spin-offs from tribunals can be more readily quantified, such as the collection of more than €2bn by the Revenue Commissioners in all categories of unpaid taxes in the fallout of all the inquiries, including the PAC inquiry into DIRT accounts. Bovale, the company owned by Michael Bailey and his brother, Tom, has paid €22m of that sum.

A lawyer who advocates the tribunal system (as most lawyers do, it must be said) argues that, even if the Oireachtas has ignored the Barr report on Abbeylara, its recommendations were adopted in practise by gardaí deployed at a house siege in Gort, Co Galway in October. It also prompted the Taoiseach and the Garda Commissioner (eventually) to apologise to John Carthy's mother and sister for his death.

One lawyer with recent experience in land purchasing claims: "The [planning] tribunal hasn't put any fear into some of the councillors and some of the developers. The brown-envelope mentality is still there. It's being done more skillfully, that's all."

But another lawyer argues that tribunal culture has exerted a seminal influence on how the country is run. "You do sometimes hear colleagues wondering what's the point of the exercise when politicians are so slow to take action on reports," agrees this lawyer, who has worked on an inquiry. "But they are having an impact. You notice now, day to day, that any suggestion of cutting corners doesn't go down well. There is a screen of accountability there.

"How long will it last? Only as long, I suppose, as people have belief in it but, sadly, that won't be very long if politicians cynically use tribunals as holding positions for their own inaction.

PLANNING TRIBUNAL

Report author: Judge Feargus Flood, succeeded by Judge Alan Mahon 

Established in November 1997

Four interim reports published 

Cost: more than €30m

Findings/Recommendations: Found that former minister Ray Burke received bribes from named businessmen. Flood referred his reports to the DPP.

Result: Nobody has been prosecuted for corruption.

€30 million

 

PAYMENTS TO POLITICIANS TRIBUNAL

Report author: Judge Michael Moriarty

Established in September 1997

One initial report published outlining the inquiry

Cost: more than €25.5m

Findings/Recommendations: Nothing yet

Result: Two politicians are central to the inquiry. Charlie Haughey has died and Michael Lowry headed his constituency poll in the last general election.

 

SWIMMING INQUIRY

Report author: Roderick Murphy, then a senior counsel

Established in February 1998

Report published in May 1998

Cost: €421,553

Findings/Recommendations: Detailed a litany of sexual abuse of young swimmers, mainly by national coaches George Gibney and Derry O'Rourke. Found that children's complaints had gone unheeded by swimming authorities.

Result: A Deloitte & Touche report three years later said the sport's governing body was still not "proactively operating a transparent tracking process and reporting mechanism" to monitor implementation of the Murphy report's recommendations. Another senior
swimming official is currently being investigated for child sexual abuse.

 

LINDSAY INQUIRY

Report author: Judge Alison Lindsay

Established in October 1999

Report published in September 2002

Cost: €12m

Findings/Recommendations: Found nobody in particular responsible for the infection of 260 people with HIV and Hepatitis C by state-supplied blood products.

Result: Judge Alison Lindsay decided not to refer her report to the DPP and refused to investigate the international pharmaceutical companies.

 

DUBLIN & MONAGHAN BOMBINGS INQUIRY

Report author: Judge Liam Hamilton (deceased), succeeded by Judge Henry Barron

Established in December 1999

Five interim reports have been published

Cost: €3.51m

Findings/Recommendations: Found grounds to suspect the UVF was helped by British security members in the 1974 bombings of Dublin and Monaghan (that killed 33 people and injured 250 others) and the 1976 murder of Louth man Seamus Ludlow. Also highlighted bizarre negligence in the Garda investigation of the bombings.

Result: The reports were passed on to the Garda Commissioner and debated by a sub-committee of the Oireachtas Justice Committee but, 15 years after initiating their campaign for a full, statutory public inquiry, the victims and relatives still have not got one.

 

ORGAN RETENTION INQUIRY

Report author: Anne Dunne, senior counsel (pictured), followed by Dr Deirdre Madden, academic lawyer

Established in April 2000

Dunne's report was published in March 2005

Madden's report was published in January 2006

Cost: €13.45m

Findings/Recommendations: Called for urgent legislation to ensure no child's organs were obtained by a hospital without parental consent and criticised the Department of Health's response to the crisis, accusing it of adding to parents' trauma.

Result: Yet another inquiry now underway examining the removal of organs in cases of miscarriage and the deaths of people aged over 12.

 

ABBEYLARA INQUIRY

Report author: Judge Robert Barr

Established in July 2002

Report published in July 2006

Cost: €18m

Findings/Recommendations: Found 23 command failures leading to the fatal shooting of John Carthy by gardaí.

Result: Yet to be debated in the Dáil, the Seanad or at Oireachtas committee. John Carthy's family is suing the state.

 

DONEGAL GARDA INQUIRY

Report author: Judge Fred Morris

Established in April 2002

Five reports published to date

Cost: €26.06m

Findings/Recommendations: Found that gardaí planted explosives and attempted to frame citizens for crimes.

Result: Speeded up Garda reforms that were already in the pipeline.

 

 

FERNS INQUIRY

Report author: Judge Frank Murphy

Established in March 2003

Report published in October 2005

Cost: €2m

Findings/Recommendations: Recommended an inter-governmental review group be established to monitor risks of sexual abuse to children and a programme of education to teach children how to identify and report abuse.

Result: Neither has been done.

 

 

LOURDES HOSPITAL INQUIRY

Report author: Judge Maureen Harding Clark

Established in April 2004

Report published in February 2006

Cost: €3m

Findings/Recommendations: Found severe management deficits, lack of transparency, questionable training and that fellow consultants of Dr Michael Neary, who performed 130 caesarian hysterectomies in 24 months, had not seen anything wrong with his
practises.

Result: Judge Maureen Harding Clark returned to the hospital three months after furnishing her report "only to find there had been no follow through from the HSE regional management", she told a conference in Dublin.

 

SMITHWICK TRIBUNAL

Report author: Judge Peter Smithwick

Established in March 2005

No report published. No date has yet been set to commence public hearings for the tribunal's inquiry into the 1989 murders of Chief Superintendent Harry Breen and Superintendent Robert Buchanan of the RUC.

Cost: €1.67m

Findings/Recommendations: Pending.

Result: Pending.

 

MACENTEE COMMISSION

Report author: Patrick MacEntee, senior counsel

Established in May 2005

Six non-substantive progress reports published since November 2005

Cost: €1.82m

Findings/Recommendations: None so far – final report due on 11 December 2006.

Result: Pending.

 

LEAS CROSS REPORT

Report author: Professor Des O'Neill, consultant geriatrician

Established in October 2005

Report published in November 2006 after being withheld for six months.

Cost: €54,324

Findings/Recommendations: Found that concerns repeatedly expressed by doctors and residents' relatives went unheeded and that 31 of 60 deaths in the home were not reported to the HSE, as statutorily required.

Result: Fourteen months after Prime Time exposed Leas Cross and six months since O'Neill finished his report, there is still no adequate nursing homes inspectorate.

 

 

PAT JOE WALSH REPORT

Report author: Declan Carey, Belfast City Hospital and Professor John Monson, University of Hull

Established in November 2005

Report published in August 2006

Cost: €223,875

Findings/Recommendations: It found systematic and individual failures in the North East HSE region led to the avoidable death of Pat Joe Walsh, 75, after unsuccessful attempts to have him admitted for surgery to three different hospitals.

Result: Two months after the report was published, a Monaghan surgeon, Paul McAleese, warned that the downgrading of Monaghan Hospital could lead to "another Pat Joe Walsh". Walsh's family is suing the state.

 

BRIAN ROSSITER INQUIRY

Report author: Hugh Hartnett, senior counsel

Established in June 2005

Seventeen months on, no report has been published

Cost: €303,353

Findings/Recommendations: None so far but controversy has already arisen over the decision to hold hearings in private. The family of Brian Rossiter, the 14-year-old boy whose death followed his arrest in Clonmel, claimed it was impossible to hire a senior counsel at the capped state rate of €1,000-a-day.

Result: It is awaited.

 

DEAN LYONS COMMISSION

Report author: George Birmingham, senior counsel

Established in February 2006 following a preliminary report by Shane Murphy, senior counsel

Report publishedin August 2006 found that five senior gardaí ignored concerns voiced by a detective garda about the veracity of the late Dean Lyons' false confession to the murders of Sylvia Sheils and Mary Callinan.

Cost: €964,443

Findings/Recommendations: The first report from Michael McDowell's newly created Commission of Inquiry, it contains no recommendations.

Result: Dean Lyons' parents expressed disappointment that the report concluded there had been no "deliberate attempt" to frame their son.