Lawyers for the Flood tribunal told the High Court yesterday they needed a "definitive ruling" on the power of the tribunal chairman to make orders, including orders compelling persons to attend before tribunal lawyers and answer questions.
Whatever the outcome of the continuing High Court challenge by Fianna Fail TD Liam Lawlor against a number of orders of the tribunal, it was likely to end up before the Supreme Court, Mr Patrick Hanratty SC, for the tribunal, told Mr Justice Kearns.
The matter was of "considerable urgency" from the tribunal's point of view.
In submissions on the sixth day of Mr Lawlor's challenge, Mr Hanratty said the tribunal needed a definitive ruling on the parameters of Section 4 of the Tribunals of Inquiry (Evidence) Act 1979 which provides that a tribunal may make such order as it considers necessary for the purpose of its functions and that it shall have, "in relation to their making", all the powers, rights and privileges of the High Court.
Counsel said the 1979 Act gave tribunals new powers not analogous to court powers because a tribunal's function is inquisitorial, not adjudicative. He did not accept the Act gave tribunals all of the powers of the High Court as that would be unconstitutional. Mr Adrian Hardiman SC, for Mr Lawlor, said he would be seeking to rely on records of parliamentary debates which made it quite clear only High Court powers for tribunals were contemplated by the Oireachtas. Mr Hanratty argued that Section 4 had to be read disjunctively - the disjunction being created by the words "in relation to their making". The second part was ambiguous. It was clearly necessary to look elsewhere to establish what were the "powers, rights and privileges" referred to. The second part also conferred immunity on the tribunal regarding any orders made.
Mr Justice Kearns asked was he to interpret Section 4 as enabling a tribunal to do something which a High Court could not do.
Mr Hanratty said a tribunal might need to make several orders, some of which might be analogous to court powers while others might not. The order directing Mr Lawlor to appear before tribunal lawyers and answer questions was not analogous to one the High Court could make.
He argued that the court, in constructing Section 4, should serve the public interest, obviously subject to the court's decision on the meaning of the words in the section.
Mr Justice Kearns asked if Section 4 did not mean the tribunal could create a whole new range of criminal offences.
Mr Hanratty said it was not the making of the order that gave rise to criminal prosecution but a failure to comply with that validly made order. Section 4 was not a penal section. If people disobeyed the order, they were exposed to prosecution and would get due process. The same situation arose in relation to, for example, breaches of planning acts. There were circumstances where one citizen could compel another to do something and failure to do so could give rise to prosecution.
It was not the court's function to think of the consequences should the tribunal order be disobeyed. The court had to decide was there power to make the order. The court must consider the matter in a context where a tribunal might be trying to find out something in circumstances where persons might not want it to and might seek to obstruct it.
Dealing with Mr Lawlor's claim that he had insufficient information to respond to the tribunal's requests for information about certain matters, Mr Hanratty argued Mr Lawlor had adequate information in the context of this being the preliminary, information-gathering stage of the inquiry.
Mr Justice Kearns noted that the tribunal was seeking information about an allegation that Mr Lawlor attended meetings with two other persons in a Dublin amusement arcade, one of whom had been arrested at Dublin Airport last February. He asked how this fell within the tribunal's terms of reference.
Mr Hanratty said the meetings might or might not carry implications. The tribunal was seeking information and needed to do no more than express its belief that Mr Lawlor might have information. Mr Hardiman said Mr Lawlor had denied attending such meetings.
The hearing continues today.
