The Age of Tribunals

Frank Barry & John O'Dowd

Issue 357, vol.90, Spring 2001

A first step might be to curtail or abolish the direct intervention of lawyers during witnesses' evidence. At present, lawyers are allowed to cross-examine, to call rebutting evidence, to make closing submissions; this is to protect the individual's "good name". (One cannot sue anybody for libel arising out of the contents of a tribunal's final report; so, the argument goes, one has to be allowed advance protection against being criticised or "defamed"). If, however, we were to tilt the constitutional balance in favour of (the public's) "freedom of speech", proceedings could become less adversarial and more expeditious. [A tribunal practice of having its lawyers take initial sworn evidence from witnesses in private, has been struck down - also on grounds of the "right to good name"].

- The government could move on setting up its Standards In Public Affairs Commission (making sure that this had the same `teeth' as the Competition Authority).

- The Director Of Public Prosecutions could be given greater latitude to investigate and prosecute.

- The State could be less hesitant in initiating civil proceedings.

But, apart from the legal obstacles, tribunals are encumbered with huge costs. A better regulation of the legal profession might curtail this. The chief tribunal lawyers have been receiving fees several times more generous than U.S. lawyers in the O.J. Simpson case. Certain circles in the profession would appear to have garnered for themselves monopoly privilege.

The State could use solicitors instead of barristers in tribunals. Indeed, the State could develop an "in-house" team for the prosecution of tribunal inquiries. And, with legal encumbrances removed, members of this team need not all belong to the legal profession.

Frank Barry lectures on Economics at University College, Dublin.

John O’Dowd lectures on Law at University College, Dublin.