Dáil Éireann díospóireacht -
Thursday, 5 Jul 2001

Vol. 540 No. 3

Flood Tribunal Terms of Reference: Motion.

Minister for Defence (Mr. M. Smith)

I move:

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 pursuant to the Tribunals of Inquiry (Evidence) Acts, 1921 to 1998 be amended as follows:

"1.By the deletion in each case where they occur of the words ‘the Sole Member of'.

2.By the addition of the following paragraphs after the paragraph G:

‘H. The Tribunal shall, subject to paragraphs I and L, consist of, from a date to be specified by instrument made pursuant to the Tribunals of Inquiry (Evidence) Acts, 1921 to 1998 by the Minister for the Environment and Local Government, not more than three full members one of whom shall be the Honourable Mr. Justice Feargus M. Flood, who shall also be the Chairperson of the Tribunal.

I. The Minister for the Environment and Local Government shall also appoint a fourth person as a reserve member of the Tribunal to hear evidence with a view to such person being appointed a full member of the Tribunal in the event that any member of the Tribunal is, for any reason, unable to continue to act; in such circumstances, the Minister for the Environment and Local Government shall, by instrument made pursuant to the Tribunals of Inquiry (Evidence) Acts, 1921 to 1998 appoint such fourth person a full member of the Tribunal and such person shall be deemed to have been a full member of the Tribunal from the date the three member Tribunal was appointed, which date shall be specified in any such instrument made pursuant to the Tribunals of Inquiry (Evidence) Acts, 1921 to 1998 by the Minister for the Environment and Local Government.

J. A person appointed as a reserve member of the Tribunal shall attend Inquiry hearings but not contribute to any of the Tribunal's private deliberations. The reserve member shall sit in the hearing chamber and observe all proceedings; will review all written evidence; will attend Tribunal discussions as an observer; but will not contribute to the Tribunal's decisions or seek to influence these in any way. The reserve member will accordingly be fully versed in all evidence before the Tribunal, should future events make it necessary for the reserve member to be appointed as a full member of the Tribunal.

K. In the event that the Chairperson, for any reason, is unable to continue to act, the Minister for the Environment and Local Government shall, by instrument made pursuant to the Tribunals of Inquiry (Evidence) Acts, 1921 to 1998, designate a member of the Tribunal as Chairperson.

L. In the event that it is necessary for the reserve member to be appointed a full member of the Tribunal, and subsequently one or two members are for any reason unable to continue to act, or if for any reason the reserve member is unable to act, the Tribunal may continue to act as a two member or sole member Tribunal as the case may be.

M. Any matter to be determined by the Tribunal shall be determined by a majority of the members and, in the case of an equal division, the Chairperson shall determine the matter, save for the issue of costs which shall be dealt with in accordance with the provisions of the Tribunals of Inquiry (Evidence) Act, 1921 and section 6 of the Tribunals of Inquiry (Evidence) (Amendment) Act, 1979, as amended by section 3 of the Tribunals of Inquiry (Evidence) (Amendment) Act, 1997.'."

Pursuant to resolutions in both Houses of the Oireachtas in October 1997, a tribunal of inquiry with Mr. Justice Feargus M. Flood as its sole member, was set up to inquire into certain planning matters. The sole member reported to the Clerk of the Dáil on 26 February 1998 and sought the terms of reference be changed to allow the tribunal to investigate matters which occurred prior to 20 June 1985. The terms of reference were expanded by resolution of both Houses in June 1998 to allow for this amendment. The terms of reference were also amended at the same time to extend the remit of the tribunal to inquire into all substantial payments made or benefits provided, directly or indirectly for whatever purpose or with whatever motive, to Mr. Raphael Burke. The motion further amends the terms of reference of the tribunal by increasing the membership of the tribunal. The scope of the tribunal is not being altered, but it will become a three member tribunal.

Mr. Justice Feargus Flood wrote to the Clerk of the Dail on 13 June 2001 outlining the progress of the tribunal to date. He indicated his intention to submit final reports to the Oireachtas, not later than September of this year, in respect of the payment of money to Mr. Raphael Burke by Mr. James Gogarty, the decisions taken by Mr. Raphael Burke in connection with Century Communications Limited, the payments made to Mr. Raphael Burke by or on behalf of Mr. Thomas Brennan and Mr. Joseph McGowan and-or companies with which they were associated.

He also indicated that he will not commence taking further evidence until he has first rendered his reports to the Oireachtas. Mr. Justice Flood has indicated that investigations into rezoning decisions are currently being made. However, he has stated that there are, in addition, other substantive issues which appear to merit public inquiry. These inquiries will, in some instances, be greater in scale and more complex than the inquiries already concluded by the tribunal.

Having regard to the multiplicity of the issues involved in these inquiries, and the anticipated workload, Mr. Justice Flood requested in accordance with the provisions of the Tribunals of Inquiry (Evidence) (Amendment) (No. 2) Act, 1998, that the terms of reference be amended by providing for the nomination of two further persons to be members of the tribunal to the intent that the tribunal would cease to be a tribunal comprising a sole member and would become a three member tribunal under his chairmanship and further by the nomination of a further person to sit with the tribunal to hear evidence with the view to such person being available to become a member of the tribunal in the event that any existing member of the tribunal, for any reason, is unable to continue to act.

The Government is wholly committed to providing the tribunal with the resources it requires to carry out effectively the work set out in its terms of reference. The formal request by the tribunal has been the subject of extensive consultation between the tribunal and the Attorney General on behalf of the Minister for the Environment and Local Government, in accordance with the provisions of the Tribunals of Inquiry (Evidence) (Amendment) (No. 2) Act, 1998. The outcome of these discussions is set out in the resolution today. The tribunal has given its consent to the proposed amendment of the terms of reference in accordance with the Act and the formal consent has been laid before the House.

The tribunal will, therefore, become a three member tribunal. During these discussions with the tribunal and the Attorney General, it was agreed that the fourth person sought by the sole member, who would sit with the tribunal to hear evidence, would be appointed as a reserve member. The Minister for the Environment and Local Government will appoint, by instrument, such person as a full member of the tribunal in the event that any member of the tribunal is for, for any reason, unable to continue to act. The reserve member will sit in the hearing chamber and observe all proceedings, will review all written evidence and will attend tribunal discussions as an observer but will not contribute to the tribunal's decision or seek to influence these in any way. The reserve member will, accordingly, be fully versed in all evidence before the tribunal should future events make it necessary for the reserve member to be appointed a full member of the tribunal.

The amended terms of reference also deal with a number of procedural or consequential issues. In the event that the chairperson, for any reason, is unable to act, the Minister can by instrument, designate another member of the tribunal as chairperson. If it is necessary for the reserve member to be appointed a full member of the tribunal, and subsequently one or two members are for any reason unable to continue to act, or if for any reason the former reserve member is unable to act, it is provided that the tribunal may continue to act as a two member or sole member tribunal as the case may be.

Although it is not anticipated that any of these situations will arise, the new provisions are being included because of the importance of the work being undertaken by the tribunal and our common wish that this work be completed and its outcome published. It will also ensure that the investment made in the tribunal in terms of the efforts of the tribunal, time and money, has a result.

The Attorney General is consulting the tribunal with regard to the appointment of the two full members and the reserve member and the party leaders will be kept informed of developments.

As I said earlier, Mr. Justice Flood will not commence the taking of further evidence until he has first submitted his final reports on the matters previously stated to the Oireachtas in September. It is intended that once these reports have been submitted, the Minister will make the instrument in accordance with the Act, setting up the three member tribunal with one reserve member. The instrument will name the new members. The instrument is not being made immediately to avoid any confusion between the work of the sole member and that of the three member tribunal.

On behalf of the Government, I formally state our appreciation of the work being carried out by Mr. Justice Flood and his legal team at the tribunal, and I am sure I speak on all our behalf when I say I look forward to receiving his final reports on the matters currently being investigated by the tribunal.

My colleague, the Minister for the Environment and Local Government, has a concern which I share in relation to the integrity of the planning system. The passing of the Planning and Development Act, 2000, concluded a comprehensive review of the planning system which was initiated by the Minister. While the public set high standards for the operation of the planning system, they demand even higher standards for those working in the system. The 2000 Act provides that over the coming year each planning authority must bring forward a code of conduct, setting the standards for the way we do business and reinforcing public confidence in the integrity of the system. These codes will also serve to provide clarity and certainty to everyone working in planning authorities by providing clear and unambiguous directions on what is and is not acceptable.

In addition, the provisions of the Local Government Bill relating to ethics, which was passed in the Dáil last night, will replace those in the Planning and Development Act with respect to local authorities. Those provisions build on those of the Planning Act and will apply to the members and officials of local authorities, whether or not they are engaged in duties relating to planning. The Bill provides for a comprehensive ethics framework which is sufficiently transparent to discourage wrong doing and to encourage confidence in the local government system. The ethical provisions update and develop existing law and take account of the Ethics in Public Office Act, 1995. They cover all local authority activity and relate equally to staff and members of local authorities.

The planning tribunal has a vital role in developing public confidence in the planning system. It has a very large task and it is important that it be discharged effectively and in a timely manner. I wish Mr. Justice Flood and the future members of the tribunal well in their task and hope with these additional resources, the tribunal will be able to meet the time frame set out in Mr. Justice Flood's letter of 13 June 2001. I commend the Resolution and the amended terms of reference to the House.

Ms O. Mitchell

This resolution, which comes on foot of a request from the sole member of the Tribunal of Inquiry into Certain Planning Matters and Payments, is one Fine Gael unreservedly supports. I am only surprised that this request did not come much sooner. As a former member of Dublin County Council, I am interested in this matter. The activities of Dublin County Council have already been the subject of investigation by the tribunal and I understand will form the basis of the next module of the tribunal's work, which I believe starts in September.

The tribunal is a creature of this House. It was created by us on foot of allegations that were made, and made public at the time. It, therefore, behoves all of us to co-operate in full with the request made by Mr. Justice Flood and to do everything we can to facilitate its work and ensure it can successfully complete the task we have assigned to it.

It would not be an exaggeration to say the matters that have already been revealed in the course of the work of the tribunal have initially shocked us. We regarded them with almost disbelief and it gradually dawned on us with horror that this was something that went on almost systematically over many years. Unfortunately, it has cast a cloud over every politician and has undermined not just public confidence in us, but confidence in ourselves as protectors of the public interest and in our own ability to put in place processes and procedures, particularly in regard to the rezoning of land which would safeguard the integrity of this system and ensure that the system cannot be manipulated by any of the participants, whether elected or unelected, for their own selfish gain and completely contrary to the common good.

If the tribunal has taught us anything, in its first four years, it is that the system of land rezoning and the making of development plans is wide open to abuse. Unfortunately, all the evidence is that the system has been badly abused over the years. I would not entirely agree with the Minister in that despite the raft of legislation we have put in place – I accept much legislation has been put in place with the aim of trying to prevent a similar set of circumstances arising again – we have not gone far enough. The Planning and Development Bill put safeguards in the existing system but the system itself will have to change.

The system has been abused and this, in turn, has cast not only a cloud over politicians but on planners and officials. In the majority of cases, this is hugely unfair to many of the decent people working in the local authority system but, inevitably, they too have all been drawn into this web. The lesson I draw from this is that the system must be changed to one which is transparent and operates exclusively in the public interest. That has not been clear to the majority of the public so far. This is not a matter for discussion today but making development plans is a vital function and it is fundamental to our economic, social and community development. It cannot remain a system which is suspect in the public mind.

Such changes may well constitute some of the tribunal's recommendations but the issue must be addressed if we are to restore public confidence in the planning process. I accept the Minister's comments on legislation passed in an attempt to prevent these abuses arising. The most significant and serious fall-out from the tribunal's revelations is the complete undermining and almost total erosion of public confidence in the political process. This strikes at the very heart of our democracy and will be far more difficult to fix than the planning system, if it can ever be fixed.

Irish people always had a healthy cynicism about politicians but the current cynicism borders on total contempt. A politician's every action, decision and opinion is accorded the lowest possible motivation. That any of us may have at heart the common good or may be motivated by a desire for public service is not even considered. This is utterly depressing and demoralising for the vast majority of decent, hardworking politicians on all sides of the House. It is particularly demoralising for local public representatives throughout the country who sacrifice so much of their time and personal and family lives to serve their communities for no private gain and usually at great personal cost. This contribution is now regarded as being entirely self-serving. Our democracy is under threat as evidenced by low voter turn-outs, protest votes etc. which indicate people's withdrawal of their consent to be governed. If we are to restore public confidence, we must do all we can by way of legislation and assistance to the tribunal. The tribunal alone will not restore public confidence but it is a vital element in that restoration.

It is imperative that the tribunal completes its work – evidence hearings, deliberations and conclusions – speedily, efficiently and exhaustively and that its reports are acted upon. We must facilitate this in every way possible, however painful it may be. I am sure that when Mr. Justice Flood took on this task four years ago, he did not foresee it becoming so complex and multi-faceted. I share the concerns expressed at the growing cost of the tribunal but I am far more concerned that its work be satisfactorily completed. This House must not do anything, in terms of resources etc., to expose it to the risk of collapse.

It is prudent of the sole member to request resources which will ensure that if for any reason he must withdraw from the tribunal or chooses to do so, its work will be able to proceed. This is an opportune time to examine the tribunal's structure and provide additional resources. The first three phases of investigation have been completed. I understand the sole member will complete his deliberations over the summer and issue a report in September prior to the next round of evidence. We should consider transforming the tribunal into a larger body, perhaps the three person tribunal recommended by Mr. Justice Flood. A sole member tribunal is perhaps better suited to the investigation of individual incidents or subjects. The tribunal of inquiry into certain planning matters and payments has expanded far beyond what was originally envisaged and has taken the tribunal into areas it did not anticipate. The scope of its inquiry may require the more traditional three member tribunal.

The terms of the Government's response to the sole member's request are slightly different to those advocated by Mr. Justice Flood who requested a three member tribunal with a reserve who would take over should any of the other members have to withdraw. Instead, the Government has provided for the appointment of a fourth person to the tribunal who would participate in its hearings but not its deliberations, except where one of the other members was required to withdraw. It is anticipated that the next phase will last for at least two years and will involve taking evidence from some 200 witnesses. This work load would exert huge pressure on the sole member and would undoubtedly extend the duration of the hearings, thereby increasing costs to the taxpayer. Most important, it would endanger the tribunal's integrity.

Acting Chairman (Mr. Kirk)

The Deputy's time has expired.

Ms O. Mitchell

Perhaps Deputy Gilmore would allow me to briefly refer to the proposal for the expanded membership. I understand that any new tribunal members will not necessarily have to be members of the Judiciary but may be people experienced in acting in a quasi-judicial manner. However, I feel it is important that at least one of the members would be a judge. This is a very legalistic area of inquiry which has been subject to judicial review and in regard to which decisions must be made on costs etc. To the extent that the tribunal's expanded membership may reduce the number of judges operating in the rest of the justice system, I ask the Minister to ensure that any judges appointed to the tribunal would be replaced.

Mr. Gilmore

The Labour Party supports this motion but the House is entitled to some explanation as to the manner in which the Government has handled Mr. Justice Flood's request for additional assistance. When the original request for assistance was made public on 13 June, the Labour Party issued a statement to the effect that the Oireachtas must respond positively to allow the tribunal to discharge the mandate given to it by the Dáil and Seanad in 1997. The statement continued:

Only Mr. Justice Flood and his team are in a position to assess the level of work before them and determine the resources needed to deal with it. However, it is clear from the report sent to the Oireachtas today that the scale of the task facing Mr. Justice Flood is far greater and more daunting than had been realised in 1997. He has shown great commitment and determination in discharging his mandate and the Oireachtas must now respond to his request for further assistance.

The tribunal, in its work to date, has discovered sufficient matters of serious public concern to more than justify the decision of the Oireachtas to set it up and the costs that have been incurred to date. The extra resources sought by Mr. Justice Flood will clearly add to the cost of the tribunal but if his investigations and findings contribute to the removal of any vestiges of corruption or dishonesty from public life, then it will be money well spent.

There may well need to be some discussions between the Oireachtas and the tribunal in regard to technical or legal matters and this should be done as speedily as possible. In addition, it is important that the Government should adhere to the long established principle of consultation between the Government and the main Opposition parties in regard to the new appointments that must now be made.

It must be emphasised that the request made by Mr. Justice Flood on 13 June was addressed to the Oireachtas and not to the Government. We expected full consultation with the other parties in the House before any response was made to Mr. Justice Flood. Deputy Howlin raised the matter in the House on 14 June with the Tánaiste who said "the matter should be discussed with the other parties in the House".

Despite the matter having been raised by our Whip at the Whips meetings and despite promises that there would be consultation with the other parties, there has been no consultation with the Labour Party. There was no consultation with the this party before the original motion appeared on the Order Paper on Tuesday, prior to it being withdrawn at lunchtime yesterday or before a totally new and dramatically different motion was circulated last evening. It also appears that there was no consultation with Mr. Justice Flood prior to the original motion appearing on yesterday's Order Paper.

Late last week our Whip received a briefing note from the Department of the Environment and Local Government which stated, "The Sole Member has made a formal request for the appointment of two further members to the Tribunal and the appointment of a further person to sit with the Tribunal to hear evidence with a view to that person being available to replace any member of the Tribunal who, for any reason, is unable to continue to act as a member of the Tribunal".

The note goes on to state:

The Attorney General has advised that the proposal to appoint a "substitute" i.e. a non-member to sit with the Tribunal is legally dubious. This request was made from Mr. Justice Flood on the understanding that such a non-member "substitute" was in place at the Saville Inquiry in Northern Ireland. The Northern Ireland Office has since clarified that the substitute in place is a reserve member of the Tribunal. With the exception of the latter proposal, it is intended to accede to the request of Mr. Justice Flood.

When the original motion appeared on the Dáil Order Paper yesterday, it simply provided for the appointment of two additional members. It made no provision for the appointment of any substitute or reserve member. Extraordinarily, it did not even provide for the appointment of Mr. Justice Flood as the chairperson of the tribunal, a measure that was necessary as he would now no longer be the sole member.

A number of questions arise in regard to this motion. Why was Mr. Justice Flood's request for a substitute member apparently dismissed out of hand? What was the basis of the Attorney General's advice that this was "legally dubious"? Was there any consultation or discussion with Mr. Justice Flood prior to the tabling of the original motion? Was the consent of Mr. Justice Flood obtained for the original motion, as required by section 1 of the Tribunals of Inquiry (Evidence) (Amendment) (No. 2) Act, 1998? Why was there no attempt in the original motion to meet the substance of Mr. Justice Flood's request for some cover in the event of a member of the tribunal being able to continue to function when this was done quite effectively in the second motion now before the House?

Yesterday, Mr. Justice Flood laid a report before the Houses of the Oireachtas in which he gave his assent to the new motion circulated by the Government. We are, therefore, happy to support the motion. We are, however, entitled to some explanation from the Government as to the background to the events I outlined. It would appear, on the basis of what we know, that a motion was placed on the Dáil Order Paper by the Government without any consultation with the other parties and without the required assent of Mr. Justice Flood. If that is the case, it is unacceptable and a serious discourtesy, to say the least, to Mr. Justice Flood.

We are also entitled to an explanation as to why the Government effectively ignored the fact that Mr. Justice Flood's report was made to the Oireachtas and not to the Government and why there was no consultation with the Opposition parties in advance of the tabling of these motions. We have been promised previously in this House that there will be full consultation in regard to the additional persons to be appointed to the tribunal. We expect that in this case the promise will be honoured. In that regard I raise a comment made by the Minister when presenting this motion. He stated:

"I would like to tell the House that the Attorney General is consulting with the tribunal with regard to the appointment of the two full members and the reserve member and the party Leaders will be kept informed of developments".

That is not consultation. I make it clear to the Minister that the Labour Party wants to be consulted about the appointment of the two additional members and the reserve member of this tribunal.

I also question the timetable for the making of these appointments. The Minister indicated that it is not intended to make the appointments until after the sole member has made his report to the Oireachtas in September. My understanding of the request from Mr. Justice Flood was that he expressly sought that this matter would be dealt with by the Oireachtas prior to the summer recess to enable the appointments to be made and the work to progress. I am surprised that it is now proposed the appointments will not be made until after the report has been submitted by Mr. Justice Flood in September. That is a matter on which my party will wish to be consulted properly by the Government.

The Minister laid some emphasis on the passing of the Planning and Development Act, 2000, which he stated concluded a comprehensive review of the planning system that was instituted by the Minister. It is now a full year since the Planning and Development Act, 2000 was passed and approved as constitutional by the Supreme Court. It is a matter of great disappointment that the provisions of that Act, as they deal with the changes to the planning system, have not yet been commenced and that only a small portion of that Act has yet been commenced. It is ironic the Government is claiming credit for progress made on improvements to planning procedures contained in an Act the House passed a year ago and that was approved by the Supreme Court but has not yet been commenced by the Government.

Question put and agreed to.