If a tribunal chairman has the power to make such orders as he considers necessary, then that is a radical new power without precedent here, a High Court judge said yesterday.
Mr Justice Kearns made the remark on the fifth day of a challenge by Mr Liam Lawlor, Dublin West Fianna Fail TD, to a number of orders by the chairman of the Flood Tribunal, Mr Justice Flood, including orders that the TD appear before tribunal lawyers and answer questions and that he produce documents relating to financial accounts.
In court yesterday, Mr Patrick Hanratty SC, for the tribunal, said tribunals have exceptional powers to deal with exceptional circumstances. Tribunals arose in circumstances of urgent public importance and both Houses of the Oireachtas had deemed it expedient to set up the Flood Tribunal. A tribunal's function was investigatory, while a court's function was adjudicative.
The tribunal had made patient attempts to get information from Mr Lawlor before making the orders complained of and had asked specific questions about matters concerning which Mr Lawlor had made statements to the media. The tribunal fundamentally disagreed with Mr Lawlor's claim that he did not have sufficient information to deal with all the tribunal's requests.
While no other tribunal had made orders of this kind, perhaps other tribunals had not encountered the particular difficulties faced by the Flood Tribunal. Some 77 of the persons elected in 1985 to Dublin County Council had been interviewed by the tribunal and voluntarily given intimate financial and other details.
He said Mr Lawlor's application was to set aside orders of the tribunal on grounds of invalidity. There was no suggestion of error on the face of the orders which were made by the tribunal chairman under Section 4 of the Tribunals of Inquiry (Evidence) Act.
What the chairman did was permissible within the meaning of Section 4 which provides a tribunal can make such orders as it considers necessary for the purpose of its functions. The chairman had considered such a necessity had arisen and he had also met other legal requirements in that his opinion was bona fide held, factually substantiated and not unreasonable.
In reply to Mr Justice Kearns, counsel accepted there was no precedent in other tribunals for the order compelling Mr Lawlor to appear before tribunal lawyers and answer questions. But that was not an argument to strike out the order, Mr Hanratty said.
Mr Justice Kearns remarked the power contended for - that the tribunal was entitled to make such order as the chairman considered necessary, within jurisdiction - was a very draconian power. He found such a contention staggering, while he had no doubt the order was made with the best of intentions and that any interviews conducted by tribunal lawyers would be conducted according to the best possible standards.
This was a radical, new power. Mr Hanratty said there was provision in the Companies Act for one citizen to interview another and this showed there was nothing draconian or unlimited about the power contended for by the tribunal. The chairman's order had to be within the tribunal's terms of reference and could not be made if the objective could be achieved by another means.
If a person disobeyed a tribunal order, all the tribunal could do was apply to the High Court and it was up to that court whether the order was enforced.
He said a stenographer would be present at the tribunal's interview with Mr Lawlor and he would also be entitled to have legal advisers. The court should also presume that tribunal lawyers would comply with fair procedures when questioning Mr Lawlor.
Mr Justice Kearns said that when gardai brought people in for questioning under the Criminal Justice Act 1984, there were clear rules governing that. Where was anything comparable in the tribunal situation, he asked. "Are we not in outer space on this whole question?"
Mr Hanratty said the position would be the same as company inspectors exercising statutory powers and argued it was entirely inappropriate for the court to draw an analogy with the Criminal Justice Act.
The judge said it was not an offence for persons arrested under the Criminal Justice Act to say nothing. It would be an offence for persons compelled to attend for questioning by tribunal lawyers and they could be prosecuted.
The hearing continues today.
