Under the terms of the Tribunal of Inquiry (Evidence) Acts 1921 to 2002, the question of costs is solely a matter for a tribunal. The Acts allow a tribunal to order the whole or part of the costs of representation of a person appearing before it to be paid, if it is of the opinion that there are sufficient reasons rendering it equitable to do so having regard to its findings and all other relevant matters. Crucially, when determining whether costs should be paid, a tribunal may take into account whether a person has failed to co-operate with it, or has knowingly given false or misleading information to it. This constitutes a powerful incentive for witnesses to co-operate fully with tribunals, apart altogether from the other potential legal consequences of non-co-operation.
The question of costs for the first module of its terms of reference has already been decided by the Morris tribunal. Its modus operandi has been to complete the first module and then deal with the costs of that module. In deciding on these costs, the chairman made deductions in some cases and totally rejected other applications, where he was of the opinion that persons had deliberately lied or otherwise had hindered the tribunal in its efforts to uncover the truth. This power is not, therefore, some remote academic possibility, but a real and significant factor in the workings of the tribunal. It is also of relevance to note that costs are being settled on a modular basis which, when added to the urgency which the tribunal is bringing to its work, means that co-operative witnesses can expect to receive their costs much more quickly than might otherwise be the case.
The intention of the Oireachtas, in leaving the task of deciding costs to tribunals and in providing tribunals with the power to withhold costs from non-co-operative witnesses, was to ensure the effectiveness of tribunals. Therefore, I do not believe that it would be sensible for the State to dilute this power in any way, for example through the direct payment by the State of the costs of any third party. That has been my clear and consistent position on the payment of costs which I have maintained in the face of High Court challenges from a number of parties to the Morris tribunal.
Deputies should consider the significant implications that any change in this position could have for the effectiveness of the Morris tribunal. I do not believe that there is any analogous precedent for what is proposed here.
While we are discussing one group of persons, a family, there must be a generally applicable principle on costs and not just an ad hoc arrangement for any individual. Any payment by the State of one party’s costs would immediately raise the question as to why the State should not pay the costs of other third parties, or indeed every third party. Selective payments would be open to the interpretation that the State is effectively coming to its own view, in advance of the tribunal’s findings, on which are the meritorious and which the unmeritorious parties before it.
At various times since September, the family in question complained to the chairman of the tribunal of their inability to continue to have legal representation for financial reasons, and the chairman recently made efforts to resolve the issue. I understand from a statement made by the chairman at the tribunal, that some progress was made by him in trying to secure the services of counsel who would act on behalf of the family. This was not acceptable to the family and the chairman decided not to continue with his efforts in this regard. Neither I nor my Department had any involvement in this initiative by the chairman.
Finally, I take this opportunity to say again what was said last week in the Adjournment debate on this subject. The forum now exists for the truth about events in Donegal to be exposed. I know the chairman and his legal team are pursuing the truth with vigour. The Morris tribunal has already demonstrated its effectiveness in doing so, and the Government has also shown its determination to take action on the findings of the tribunal. I call on everyone involved to participate in what is transparently a fair and effective process.