That Dáil Éireann resolves that the terms of reference contained in the resolution passed by Dáil Éireann on 7 October 1997 and by Seanad Éireann on 8 October 1997, as amended by the resolutions passed by Dáil Éireann on 1 July 1998 and by Seanad Éireann on 2 July 1998 as further amended by the resolutions passed by Dáil Éireann and Seanad Éireann on 28 March 2002 pursuant to the Tribunals of Inquiry (Evidence) Acts 1921 to 2002 be amended by the substitution of the following paragraphs for paragraphs H and I:
‘H. The Tribunal shall consist of not more than three members as follows:
(a) His Honour Judge Alan Mahon and Her Honour Judge Mary Faherty who were appointed by instrument made on 24 October 2002 by the Minister for the Environment and Local Government pursuant to the Tribunals of Inquiry (Evidence) Acts 1921 to 2002 and
(b) His Honour Judge Gerald Keys, from a date to be specified by instrument made pursuant to the Tribunals of Inquiry (Evidence) Acts 1921 to 2002 by the Minister for the Environment, Heritage and Local Government.
I. His Honour Judge Alan Mahon shall be the Chairperson of the Tribunal from a date to be specified by instrument made pursuant to the Tribunals of Inquiry (Evidence) Acts 1921 to 2002 by the Minister for the Environment, Heritage and Local Government.'.
I have received a request dated 27 June 2003, from the tribunal of inquiry into certain planning matters and payments, for amendment of the instruments establishing and appointing the tribunal further to the provisions of section 1(A)(1)(b) of the Tribunals of Inquiry (Evidence) Act 1921, as amended. I note that the tribunal is satisfied – as am I – that the proposed amendment would not prejudice the legal rights of any person who has co-operated with or provided information to the tribunal.
Having considered the request I now propose, subject to the passing of the necessary resolutions in the Dáil and Seanad, to amend the existing instruments in compliance with the tribunal's request. This is pursuant to the statutory mechanism set down for changing the membership and chairmanship of the tribunal.
The purpose of this resolution is to reconstitute the membership of the tribunal and ensure it will be able to get back into public session immediately. The resolution proposes that Judge Alan Mahon, who is an existing member of the tribunal, will be appointed as chairperson and that Judge Gerald Keys, who is currently the reserve member, will be appointed as a full member.
When resolutions have been passed by both Houses, I will make an instrument under the Tribunals of Inquiries (Evidence) Acts 1921 to 2002 to give full effect to the new membership. At that stage, the membership of the three person tribunal will be Judge Alan Mahon, chairperson; Judge Mary Faherty; and Judge Gerald Keys.
The need for this resolution arises from the resignation of Mr. Justice Feargus Flood as both chairperson and member of the tribunal. At the outset, I pay tribute to Mr. Justice Flood for the exemplary manner in which he has discharged his duties, initially as sole member, and more recently as chairperson of the three member tribunal. When Mr. Justice Flood took on the task of investigating allegations of corruption in the planning process in 1997, neither he nor the Government expected that the work of the tribunal would be still under way six years later. During that period, he made a sustained and dedicated contribution.
The resignation of Mr. Justice Flood is, in many respects, the end of an era. As the Taoiseach noted, his name will be synonymous with the will and determination of the Dáil, the Seanad and the Irish people to expose and root out malpractice and corruption. This of itself is a significant contribution by him to Irish political history. One has only to look at the public response to his second interim report, published last year, to have an appreciation of the esteem in which Mr. Justice Flood is held by the Irish people.
In recent days, some controversy has arisen about the events leading to the resignation of Mr. Justice Flood and when the Dáil and Seanad should have been informed. I would like to put the facts on the record of the House. On 26 May there was a meeting, at the request of the tribunal, with Mr. Justice Flood, Judges Mahon and Faherty and the Attorney General concerning Mr. Justice Flood's staying on as an ordinary member of the tribunal and the costs issue being decided by Judge Mahon.
On 28 May, Mr. Justice Flood wrote to the Attorney General indicating, for reasons set out in that letter, that he considered himself to be unable to continue to act as chairperson but that he considered he could continue as an ordinary member. He asked the Attorney General to arrange to have the Oireachtas and myself informed. The Taoiseach and I were given a copy of that letter. The Attorney General responded on 30 May to Mr. Justice Flood asking whether he wanted a copy of the letter circulated or whether he wanted the Attorney General to simply apprise the Oireachtas of the contents.
On 30 May, counsel for the tribunal requested the Attorney General not to circulate the letter for the reasons stated yesterday by the Taoiseach. On 4 June, Mr. Justice Flood wrote to the Attorney General saying he would shortly send a letter, concerning his intention to step down as chairperson, for circulation to the Clerks of both Houses of the Oireachtas.
By letter dated 16 June, received late on 17 June, Mr. Justice Flood formally confirmed to the Attorney General that he considered himself unable to continue to act as chairperson and asked that a copy of his letter be sent to the Clerks of both Houses of the Oireachtas. This letter was forwarded to me by the Attorney Gen eral, by letter of 18 June, in which the Attorney General indicated that he felt it would be proper procedure for me, as Minister for the Environment, Heritage and Local Government, to send the letter to both Clerks. He agreed this changed procedure with counsel for the tribunal.
When a copy of the letter of 16 June was received by me, I decided that it should be brought to the Government's attention at the earliest opportunity. At the next Government meeting, on 24 June, the Government considered the letter in the presence of the Attorney General and decided on the lines of the response which I should make on its behalf to the chairperson. At the same time as I replied to the chairperson, I arranged to forward a copy of his letter to the Clerk of the Dáil and the Clerk of the Seanad.
My letter of 24 June to Mr. Justice Flood raised several issues. I indicated that we considered it preferable if he were in a position to remain as chairperson to decide the question of costs. I also expressed the view that concerns exist as to the prospects of legal challenges to future reports of the tribunal, in the light of the contents of his letter of 16 June and his continued involvement as an ordinary member. I asked Mr. Justice Flood to address the risk of legal proceedings to a report produced by a tribunal while he was a member. In doing so, I was addressing the following issue.
It was our concern that if Mr. Justice Flood continued on, as an ordinary member, hearing modules, over a lengthy period of time, that any subsequent report could be challenged. What we were seeking to elicit from the tribunal was the nature of risk of such a legal challenge in the context of the length of the proposed modules Mr. Justice Flood would be hearing as an ordinary member. Our concern was simple. It was that those who were determined to challenge a subsequent report of the tribunal would rely upon the fact that Mr. Justice Flood had not heard the costs issue but was willing to decide issues relating to corruption and bribery. We were seeking clarification on this potential problem.
On 26 June 2003, a meeting took place between the Attorney General and Mr. Justice Flood. This meeting had been sought by Mr. Justice Flood to clarify his position. He stated that he was personally disposed towards dealing with the issue of costs and indeed to continue on in the tribunal for a further period. He stated his willingness to address the costs issue, notwithstanding the added strains and burden that it would impose. There was also a brief discussion about possible future legislative changes to enable the administrative burden of the tribunal that was placed on a chairperson to be reduced by permitting the administrative tasks of the chairperson to be delegated to another member of the tribunal. This was to address one of the reasons behind the proposal contained in the letter of 16 June 2003 and was a mechanism that would assist his continuation in the tribunal.
It was agreed that Mr. Justice Flood would return to the tribunal offices for the purpose of sending a letter to the Oireachtas regarding this future role in the tribunal as discussed with the Attorney General. I was informed by the Attorney General of this new situation. Later that afternoon he received a telephone call from Mr. Justice Flood who was at the tribunal. During that call, the Attorney General was informed by Mr. Justice Flood that he then wanted to reconsider his future role in the tribunal having had further discussions. It was also agreed that there would be further consideration of his position overnight by Mr. Justice Flood. I was informed of this change in circumstances by the Attorney General.
On the morning of Friday, 27 June 2003, the Attorney General received a telephone call wherein he was informed that Mr. Justice Flood was resigning from the tribunal. A letter was then sent to the Oireachtas and copied to the Attorney General. Members of this House have also received a copy of that letter. There was only one meeting last week between the Attorney General and Mr. Justice Flood.
I received a letter from Mr. Justice Flood on Friday, 27 June in which he indicated that, having reflected on the matter, and in the interests of the tribunal and its very important work to date and into the future, he had decided to resign with immediate effect as chairperson and member of the tribunal. Mr. Justice Flood also sent this letter on the same day to both Houses of the Oireachtas.
I want to make a final point on the question of withholding information. Yesterday in the House, Deputy Rabbitte said that I had informed the House that no changes were proposed to the planning tribunal on 17 June long after discussions were initiated following the original letter from Mr. Justice Flood. In fact, I was not in the House on the day and the Minister of State at the Department of Environment, Heritage and Local Government, Deputy Noel Ahern, replied on my behalf. Had Deputy Rabbitte read the question he would have seen that it was in fact answered correctly. The question asked if I was considering seeking the approval of the Houses of the Oireachtas for a change to the mandate, terms of reference or method of inquiry of the planning tribunal. As the House is aware, there is no proposal to change the mandate or method of inquiry of the planning inquiry. It was only last Friday, 27 June, ten days after the question was answered, that I received a request from Judge Mahon and Judge Faherty to reconstitute the membership of the tribunal which triggered today's resolution. These are the facts, which clearly show that, neither now nor in the past, was there any conspiracy to withhold information from the Oireachtas. I hope the matter can rest there and the bona fides of the Government will be accepted.
The Government has also been accused of attempting to frustrate the work of the tribunal by delaying last year in appointing additional members. Again, this is not the case. The allegation is totally unfounded. Resolutions to allow for the appointment of additional members were passed by the Dáil and Seanad on 28 March 2002. To give effect to those resolutions, it was necessary for the Minister for the Environment, Heritage and Local Government to make an instrument under the tribunals of inquiry Acts to formally appoint the new members. The tribunal, however, specifically requested in May 2002 that such an instrument should not be made until after Mr. Justice Flood had submitted his interim report to the Oireachtas. The interim report on the first three modules was finalised by him and submitted to the Oireachtas on 26 September 2002. I signed an instrument four weeks later extending the tribunal to a three-person tribunal with a reserve member.
The allegations of attempts to frustrate the tribunal were also scotched when Mr. Justice Flood wrote to the Taoiseach on 30 June confirming that all such allegations were completely groundless. The Taoiseach read that letter into the record of the House on Tuesday. I propose to do so again:
I refer to my correspondence with the Attorney General and Minister Cullen on the above matter in which the reasons underlining my resignation are set out.
I note in the public press statements to the effect that action-inaction by the Government in relation to requests from the tribunal for additional judges or other matters have caused frustration and are the real reason for my resignation.
I wish to state categorically that this is not so. My decision is in no way related to or consequent upon any action or inaction by the Government of any kind.
My relationship with the Government is through the Department of the Attorney General. I have at all times during my tenure of office had a relationship with the Attorney General's Office that has been exceptionally cordial and co-operative. The allegation that the work of the tribunal has been delayed or frustrated in any way by the Government is completely groundless and has nothing to do with my decision to resign.
The reasons for my resignation are solely set out in my correspondence with the Attorney General and Minister Cullen. I trust this letter clarifies the position.
Feargus M. Flood.
The second interim report was a highly significant contribution to Irish public and political life. The tribunal's findings on the modules completed to date were unambiguous and show the thoroughness with which the tribunal carried out its investigations. Mr. Justice Flood sent out a very clear message to anyone who has any corrupt dealings, or is contemplating such dealings in relation to the planning system, that they will not get away with it. While significant work has been carried out by the tribunal, it clearly has much more to do. When I wrote to the tribunal on 24 June, I also asked for a report dealing with the following matters: the likely duration of the current module or modules; the likely duration, up to completion, of all matters arising within the terms of reference, as amended, of the tribunal; the total in legal costs claimed to date by third parties, that is, those who sought representation or provided discovery and so forth; and the likely costs to be incurred in investigating all matters within the terms of reference. I sought this information for the benefit of the Oireachtas in dealing with consideration of the resolution. The tribunal responded to me on 25 June. Regarding the future duration of the tribunal, it indicated that it is in the course of hearing evidence in public on a number of interlinked planning modules. It is the intention of the tribunal to conclude the public hearings relating to these modules by the end of 2006, after which the tribunal will furnish a report on allegations of planning corruption in the Dublin area to the Oireachtas.
It is also the tribunal's intention that its report will make recommendations as to how any matters then outstanding might best be dealt with, having regard to the tribunal's obligations and experience and any legislative changes in the meantime. The tribunal also indicated that the duration of the tribunal beyond 2006 will depend upon the number of issues, if any, deemed to merit public inquiry. The tribunal is currently investigating a number of issues in private but no decision has been taken as to whether any of these issues require public hearing. It is anticipated that within the next 12 months the tribunal will be in a position to decide whether any of the issues should be heard in public and, at that time, the tribunal will be in a position to advise me, and the Oireachtas, of the likely duration of the public hearings relating to any such issue. The full texts of that letter and my letter of 24 June were sent to the Clerks of both the Dáil and Seanad on 27 June. It is clear from that correspondence that the tribunal still has significant work to do. In light of the likely duration, it is understandable that Mr. Justice Flood could not be expected to finalise the work of the tribunal as chairperson and his resignation must be viewed in that context.
The decision taken last year to appoint a reserve member allows for a smooth transition to a newly constituted tribunal. The proposal is to appoint an existing member as chairperson and to make the reserve member a full member. I do not propose to appoint a new reserve member at this stage and none has been sought by the tribunal as it would not be practical given that a current module is in mid-stream. If the tribunal makes such a request at any stage in the future, I will bring the matter before the Oireachtas.
Before concluding, I want to refer to the question of who will determine costs on modules to date. As I indicated, it was our preference that Mr. Justice Flood would deal with the matter. The resignation of Mr. Justice Flood means it must be dealt with by another person. This raises legal issues regarding hearings to determine the issue of costs in respect of modules of the tribunal completed to date. The Minister for Justice, Equality and Law Reform will arrange for new legislation in the autumn to deal with this issue. Pending such legislation, hearings on costs will not take place.
I reaffirm the commitment of the Government to the completion of the inquiry into certain planning matters and payments. The speed with which this resolution was brought to the Dáil gives an indication of the commitment to the future work of the tribunal. The members of the tribunal are persons of the highest calibre and integrity and this tribunal will continue with the same persistence and determination as was demonstrated by Mr. Justice Flood. The members of the tribunal, with their legal team and staff, will be supported in full in their determination to establish whether any corrupt practices exist, or have existed, in our planning system and to report without fear or favour on the outcome of the inquiries.
I commend the resolution to the House.