Much to commend in Disclosures Tribunal

AS FIRST acts go the opening module of the Charleton Tribunal has had much to commend it.

It introduced some of the leading characters, whet the appetite for future action, established several narrative arcs but didn’t provide too many plot spoilers for later in the series which now seems likely to extend into the New Year.

There is even the potential for a number of sequels offering the possibility of packed houses in the High Court, Supreme Court and European Court of Human Rights.

In the six months since the establishment of the inquiry into “protected disclosures . . . and certain other matters” (with a remit to range more widely as required) we have seen a large cast of witnesses, many of them in social work positions and agents of Tusla who would never have expected the degree of public scrutiny to which their day-to-day activity has been subjected.

The elephant in the room, which will grow larger, remains the lengths to which journalists will be prepared to go to protect their sources, albeit that Commissioner Nóirín O’Sullivan, former commissioner Martin Callinan and star-witness-in-waiting Supt Dave Taylor appear to have stated that they have waived their own privilege.

As we commented in the second week of February the inquiries by Mr Charleton are likely to renew the debate about the right of journalists in matters of confidentiality. That there is a tension and a lack of unanimity on this subject among reporters will already have been noted by the Supreme Court justice. It is yet to be seen whether publishers and broadcasters are fully four square with their writers in this respect also, and that resolve may be put to the test if any interim report or recommendation decides to tie the rate of progress to this issue.

There are already European judgments on this subject, one of the most famous being a 21-year-old case where a commercial organisation wished to force a magazine to divulge the origin of its information, widely thought to be an employee of the aggrieved company. In other words, a whistleblower.

On that occasion the journalist won. The rights of a commercial entity to control its information and to take action against a staff member were outweighed by the importance of a free press in a democratic society. In a landmark decision it was held that if journalists were forced to reveal their sources the role of the press as public watchdog could be seriously undermined because of the chilling effect that such disclosure would have on the free flow of information.

The world has changed considerably since 1996, and not always for the better. It would be rash to assume that such arguments would prevail over the requirements to ensure the accountability of important public servants.

There is significant scope for delay if Mr Charleton’s deliberations become caught up in abstruse arguments about freedom of expression with all the dangers of virtue signalling that will be present in that. It is hoped the quest for an important truth does not run into the sands on this particular point of law.



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