Wednesday, February 14, 2007

INSIDE POLITICS - Tribunals, Justice and Gravy Trains

In my part of the country - Galway - I have always loved the way people pronounce the word lawyer. It has always seemed so appropriate. (for guidance: 'boys' is pronounced 'byes' in Galway City).

Anyway, Michael McDowell's comments today more or less implying that the Planning Tribunal needs to be shut down were faintly ridiculous.

"I believe that the Mahon Tribunal could well have accumulated costs, including third party costs, which will, when the dust settles, exceed one billion euro."

"And at some stage, we have to ask ourselves is it worth proceeding any further in those circumstances."

It's a bit late in the day and also a bit rich coming from him. He himself published legislation, The Tribunals of Inquiry Act, in November 2005 that would allow the Government to do just that. Indeed, in September of 2005, he said there was need to urgently draft legalisation to address the problems with the costs that were accumulating.

Over a year before, Charlie McCreevy introduced a new fee structure for Tribunal lawyers in an effort to kerb the spiralling legal costs. If existing tribunals had not completed their work by specified dates (and these dates were agreed with the Tribunal chairmen by the way), the fees for their senior counsel would be reduced from €2,500 a day to circa €900 a day.

Of course what happened when the Tribunals missed their deadlines was that the Government keeled over and granted them extensions. Moriarty now looks like it's going to get its third extension (see my story in this morning's Irish Examiner).

Tribunals are in danger of becoming as big a scandal (in terms of costs to the public purse) as the scandalous goings-on they investigate. Part of this is to do with the unwieldy manner in which they must adhere to the nth degree to all the Constitutional safeguards on natural justice. Part of it is to do with the fact that barristers (trained advocates) and solicitors have taken on the roles of Sam Spade investigators and that earlier Tribunals failed to employ cops or forensic accountants or experts in tax or planning.

But it also comes down a lot to the exorbitant fees that barristers command. The Competition Authority made 13 specific recommendations for lawyers. The Bar Council says it has, or is, implementing nine of them but has drawn the line in relation to the other four - see Paul Cullen's story in the Irish Times (subscription required).

One of those four too-much-to-ask recommendations is the one that allows barristers that have a right of audience in the courts to be employed (and work for a salary) rather than being sole traders. This, of course, would definitely lead to a reduction in costs.

The Bar's grounds for rejecting it are entirely spurious. They say it would compromise the independence of barristers.

One of the things that most impressed me during the whole Guantanamo controversy was the refusal of military lawyers to go along with the decision of their political masters to right roughshod over the rights afforded by the Geneva Convention. And are they saying that judges and solicitors (both salaried) are somehow compromised in their work?

The truth of the matter is that €2,500 in fees a day is ridiculous, risibly so.


Dan Sullivan said...

Not wanting to defend the legal eagles but a school friend of mine who went that way in college and who I was giving out to about legal fees took it upon himself to tell me that the point of the fees structure is that the money they receive goes to pay all the researchers, secretaries, and so on are paid out of that. And that the whole point of the obfuscation about who does what in a legal firm is that if you come up with a brilliant legal strategy in five minutes that it would take someone else 5 days to come up with because you're really good at your job why should you be paid less because it took less time. Of course, the tribunals appear to be more about observation than any real legal arguments.

I have to wonder if McDowell is trying to run interference for Bertie. Yet, it is too obvious a move that it can't make sense. Can it?

Harry McGee said...

There has been a lot of talk of McDowell riding shotgun for Ahern in relation to this. Somebody has to tackle the costs of Tribunals but the problem for the senior partners in Government is that they and their leader are very compromised.

Dan Sullivan said...

That could be it alright. However, it completely puts paid to the idea the the PDs are a watchdog on the activities of FF. He is acting more like a security dog for FF.

Someone suggested to me that one way to look at this elongated election campaign is to take each week as round between now and the final kick off. I would (biased I know) give last week and this week up to day to the opposition.