MICHAEL CLIFFORD: Legal cost of inquiry weighing on McCabe

Michael Clifford examines some of the issues surrounding the O’Higgins Inquiry into claims of garda malpractice as its cental figure, the whistleblower Sgt Maurice McCabe, undertakes a judicial review to reduce the financial burden on him.

THE latest twist in the fallout from the recent Garda scandals is throwing up some interesting nuggets, both in terms of personnel and the issues at stake.

On Tuesday evening, Sgt Maurice McCabe launched judicial review proceedings against the inquiry. Higgins was set up last December, under the chair of former judge Kevin O’Higgins, to investigate claims of garda malpractice made by McCabe.

The allegations were first examined by senior counsel Sean Guerin, whose report last May led to the resignation of former justice minister Alan Shatter. Guerin reported that the allegations merited further investigation under the Commission of Inquiry model.

Now Mr McCabe, who is central to the inquiry, has moved to have it stopped on the basis that he claims he will be out of pocket unless there is revision of the legal fees that are to be allowed by the inquiry. And guess whose pocket could be heavier or lighter depending on the outcome of the challenge?

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The Commission of Inquiry Act was enacted in 2004, largely in response to the ballooning costs of tribunals. At the time, the Flood and Moriarty tribunals had been in session for seven years each, with some barristers earning up to €2,500 a day for their services. There was growing public unease about the costs. Chief among those harbouring unease was then justice minister Michael McDowell.

In his ministerial capacity he introduced the Commission Of Inquiry Act, which ensured that future inquiries could be held behind closed doors, which, along with other provisions, greatly cut down on the legal costs. The model is regarded as a major success, and has been used a number of times since, most prominently in inquiries into clerical sex abuse.

Since leaving politics, Mr McDowell has returned to the law library, and has for the last six years or so represented Mr McCabe. If the judicial review is successful, the senior counsel will be one of those to benefit by an increase in fees.

It’s the second time in recent years that Mr McDowell has found himself on the opposite side of legislation that he was responsible for enacting. The malpractice highlighted by Mr McCabe, above all, demonstrated the shortcomings of the Garda Síochana Act 2005, which was introduced in response to the garda scandals uncovered by another long running tribunal, chaired by Frederick Morris. Mr McDowell was also the line minister who brought that one through the Oireachtas.

To be fair to the legal eagles who are representing Mr McCabe, his role in the Higgins inquiry is unique. It is the first occasion that an individual is so central to an inquiry. Guerin looked into 11 allegations about alleged malpractice, and also recommended that a few other issues form part of the inquiry. It is expected to last up to two years.

Because of both his direct involvement and his intimate knowledge of all the cases, McCabe will have to be present at practically all the hearings, and will require corresponding representation.

The amount of preparation work to be undertaken by his solicitor and barristers will be considerable. Those who are representing him may well find themselves in a position where other work and accompanying goodwill will have to be sacrificed.

Understandably, the public has little sympathy for very well paid legal personnel. It is notable, however, that even in the halcyon days of tribunals, a number of barristers resigned at various junctures to return to private practice. Career concerns and simple economics dictated that they were better off disembarking from the tribunal gravy train.

Under the Commission of Inquiry Act, a guideline for legal costs is formulated by the line minister, in this case the sitting Minister for Justice, Frances Fitzgerald. The inquiry is then bound by those guidelines.

While the amounts set out by the minister in this case have not been published, it is understood that they are typically a fraction of the kind of day rates enjoyed by barristers at tribunals 20 years ago. In the Planning Tribunal, for instance, barristers were entitled to a rate of €1,950 per day when it was established in 1997, and enjoyed a few hikes to that rate over the course of the tribunal’s 15-year tenure.

Mr McCabe has filed an affidavit with the High Court for the judicial review in which he sets out that the guidelines “confine and restrict the entitlement of a witness to recover legal costs necessarily incurred to the extent that they are inoperable null and void and of no practical effect. The amount, including maximum amounts as fixed and measured by the Respondent (the Minister for Justice) in the guidelines have the effect of transferring the obligation to pay and discharge legal costs from the exchequer to the witness,” the affidavit states.

In short, Mr McCabe’s case is that he fears that he will be either left severely out of pocket, or without the representation he requires unless there is some revision to the guidelines.

Whether the High Court accepts his claims remains to be seen. The aspect of the judicial review that is likely to be key is his centrality to the inquiry, and whether or not that should entitle him to a level of costs above and beyond the issued guidelines.

One way or the other, some resolution will have to be found that will ensure his full involvement, or else the inquiry will represent a performance of Hamlet without the royal personage.

The issues Higgins is investigating are vital. As a result of the controversies generated by Mr McCabe’s allegations, and how they were dealt with, a minister for justice has resigned. A garda commissioner’s resignation was, at least in part, also attributable to his role in the various controversies. An independent policing authority is being established. The Garda Ombudsman has been awarded enhanced powers. And major reforms have been initiated within the force.

Guerin’s report generated major public and political disquiet about what was uncovered, yet his brief dictated that he had only scratched the surface. The full story may be delayed with this legal challenge, but the public interest demands that it must be written.

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