Dáil Éireann díospóireacht -
Thursday, 3 Jul 2003

Vol. 570 No. 4

Tribunal of Inquiry into Certain Planning Matters and Payments: Motion.

Minister for the Environment, Heritage and Local Government (Mr. Cullen)

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 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:

Dear Taoiseach,

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.

Yours sincerely,

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.

Acting Chairman

I call Deputy Kenny. Speakers have up to 15 minutes.

Mr. Kenny

I am happy to address the resolution to amend the terms of reference of the tribunal of inquiry into certain planning matters and payments.

I pay public tribute to Mr. Justice Feargus Flood for his conduct and the efficiency with which he brought forward his interim report. As I previously said, this report has set a standard for tribunals in terms of its forthrightness and clarity. It is important that this be borne in mind when one considers this matter has been ongoing for six years. The thoroughness of his investigation and the clarity of the language used in his report, rid us forever of the notion that some in our society are above the law. He has set the record and the standard for all other tribunals. He has left us in no doubt that when it comes to the most important business of this country – the public business – there must be only truth, told willingly, wholly and on time.

The Flood tribunal is the people's tribunal; it is not the Government's tribunal and it does not belong to the Fianna Fáil Party or the Progressive Democrats. It was set up by the Houses of the Oireachtas to lay bare the corruption we now know was endemic in certain sections of political life and in one in particular.

There has been a tendency in the language used by the Taoiseach to claim ownership of the tribunal to an extent. That is also evident in the legislation published by the Minister for Justice, Equality and Law Reform. This party welcomes measures which will deliver investigations that are effective, efficient and have the confidence of the public. It is essential that the primacy of the Oireachtas, not the Executive, in establishing investigations, is maintained.

I am somewhat confused as to the reasons the Taoiseach handled this matter in the way he did. He has behaved as if the new legislative model is already in place. He has given the impression, at least to some, that this is not his tribunal but rather the people's and therefore more public accountability in its workings and not less is required.

In June 2001, an overworked Mr. Justice Flood requested more judges. These were not appointed until March 2002. No public hearings were held before the general election. On May 26, the Attorney General met Mr. Justice Flood, Judge Mahon and Judge Faherty to discuss Mr. Justice Flood's desire to step down. Mr. Justice Flood announced on Bloomsday that he was writing to the Attorney General announcing his wish to step down as chair but to remain as an ordinary member.

What confuses me is that, presumably, the Attorney General would have conveyed this news to the Government and to the Taoiseach. Yet on 24 June, when the Taoiseach came to the House to answer questions regarding the Moriarty tribunal, the Ceann Comhairle at first went to rule out the business of the Flood tribunal and the Taoiseach announced with an air of great surprise that he had just been informed of Mr. Justice Flood's decision. I do not understand why the air was not cleared in the House in the beginning. I am not suggesting the Taoiseach knew something he should have told the House other than that he should have said to the House: "I have this information. I have known it for over a month and it is not news to me to read it out here on 24 June".

There is a difference of opinion between the Taoiseach saying that it is his view that the tribunal will sit for a further 15 years and the tribunal and its teams saying that the work would be completed by 2006. The Taoiseach in the House volunteered to share his legal advice and not only that, but "to take whatever steps are necessary, as expeditiously as possible to ensure that future determinations of the tribunal are valid and legally sustainable". He also stated that the Minister for Justice, Equality and Law Reform's new legislation will "not apply to existing tribunals". Yet he told Deputy Rabbitte that the idea of putting the Flood modules under the new system would be "eminently sensible." That is a little like the muddled thinking that applied in the investigation of the former Minister, Ray Burke, the man who was described as the man "who betrayed us and let us down", but who shortly before was "a good man hounded out of office by rumour and innuendo."

By July 1 the Taoiseach was still maintaining that when he made his announcement on 24 May, he had only received the information a few hours earlier. That is not true. Either the Attorney General told the Taoiseach and the Government when he had the meeting in regard to Mr. Justice Flood in the first instance or he did not. There was almost a month in which the Taoiseach could have informed the House or the party leaders of the information in his possession. He then reiterated his commitment to make correspondence available and for whatever reason, it was only delivered to certain sections of the media and not to any of the representatives of the people. I know the Taoiseach apologised to the House for that but these things should not happen on sensitive issues such as this.

The mishandling of the affairs of the tribunal is also evident in the issue of costs. The Government has promised legislation in the autumn which will allow Judge Mahon to deal with the issue of costs. However, the Government has been aware of the need for this legislation for more than six weeks. If there is a sense of urgency as expressed by the Minister for the Environment, Heritage and Local Government, why has it not been possible to produce the legislation this week or last week before the House rises for the summer recess? The Members would then have an opportunity to have a full debate on the matter and to offer their comments. I am not aware of any Oireachtas Member who wants to see the workings of this tribunal held back and in fact, the opposite is the case. There is a clear desire expressed by the people that these matters be moved on as expeditiously as possible. There is one clear single fact which emerges from this debate, that under no circumstances does the public want a situation where the taxpayer has to fork out for the costs of those who have been deemed to have deliberately obstructed the workings and investigations of the tribunal, whether those costs be €10,000 or €10 million. The public will not wear that. That gives rise to the possibility of a series of legal challenges because Judge Mahon who will now chair the tribunal will have to read up to 37,000 pages of transcript, understand the nuances of how that information was imparted, the environment in which the events took place and the mood of the day. While the Taoiseach has stated there is no legal impediment to him so doing, it may well be that legal challenges will arise.

On a day when the Government has used its majority to guillotine several Bills through this House we can only speculate as to why there was no urgency in the production of this legislation by the Minister for Justice, Equality and Law Reform, so that it could be at least be dealt with in part before the House resumes business in the autumn.

It is essential that we remember that this tribunal is about exposing the contaminated moral environment created by certain people in the world of politics for decades and which was highlighted by Mr. Justice Flood in his interim report.

There is serious speculation that some damning evidence against the Taoiseach will be presented at future stages of the tribunal. I have no evidence to substantiate this speculation other than the usual rumour that floats around the country. It is important that we reiterate that the modules dealing with Gilmartin and Quarryvale be held in public. I take the word of the Minister for the Environment, Heritage and Local Government on that. If one was to believe some of the comments, the evidence would, as Deputy Rabbitte said in the House some years ago, rock not just the party but the country to its foundations.

Mr. Cullen

To the foundations of the State.

Mr. O'Dea

He was wrong about that too.

Mr. C. Lenihan

The Deputy should not try to compete with him at that level.

Mr. Kenny

The people who have paid millions for the first five years of the tribunal are entitled to hear that information in public.

I also note that the legislation, which will be introduced by the Minister for Justice, Equality and Law Reform, refers to moving around the different modules. I am not a legal expert, but the legal basis for what he intends to do may be questionable. Is it the case that witnesses, characters, informants and subject matters are so interrelated it would be impossible to identify and surgically dismember some modules from the existing procedure? Having read some of the transcripts of the replies given by Mr. Justice Flood to lawyers who questioned the rights and range of the tribunal, it appears that there is a concept of an overarching tribunal that would cover all the modules and that planning permissions, property issues or issues relating to module 20 might also relate to module 1. There may be serious difficulties if one was to try to shift certain modules into private session in an attempt to speed it up and to reduce costs, which is a principle one can support.

I do not want to give the impression that it will drift for many years if it is done in public. I will not stand for a situation where people might perceive the party as being corralled into collusion with the Government which could lead people to say that the public's right to information was being denied.

The Taoiseach

I would like to make one point. As regards the current modules, the A5 modules, that collective group is before the tribunal. Those modules must be investigated by the tribunal. There is no other way to do it. The A5 group includes the ones before the tribunal. All the others are separate. The A5 group must be in front of the Mahon tribunal, as it will be called after today. A decision has not been made about all the other modules. The 15 are still there after the A5. A decision has not been made so someone else could take those up.

Mr. Kenny

I thank the Taoiseach for that clarification. I remind the Taoiseach about what Mr. Justice Flood said when he spoke on day 329. He said it was true to say that the entitlement of Mr. O'Higgins to cross-examine on issues which are not covered in this module is deferred, but it is deferred only to the point where the matter will be raised in its own module. He also said that all relevant statements and allegations relating to subsequent modules would be provided to all concerned in advance of subsequent modules and these can be tested in the usual way in the course of subsequent hearings. If the other 15 are separate and can be heard by other people or in a more closed environment and if what Mr. Justice Flood said on day 329 is to apply, then it appears that the information given in those separate modules would have to be made available to the questioners in respect of the first five which have been heard in public. I am concerned that the overarching concept might have to apply in public to all modules instead of the group or groups outlined by the Taoiseach. Mr. Justice Flood's statement on day 329 seems to give that impression.

It is clear from what Mr. Justice Flood said that the operations and procedures of the tribunal have been predicated upon guarantees and assurances from the tribunal that there will be an opportunity in subsequent modules to cross-examine and test the credibility of people making allegations. What is taking place is a deferral of rights.

Mr. Cullen

That is incorrect.

Mr. Kenny

One of the pillars of natural justice, as the Minister for the Environment, Heritage and Local Government knows, audi alteram partem, the duty to hear the other side, has been deferred. I do not know if the Minister for Justice, Equality and Law Reform has examined this element of what Mr. Justice Flood said. If he knew six or seven weeks ago that this legislation was required, I do not understand why he did not introduce it in the House. I do not understand his reasons for flying the kite that the State can exonerate the tribunal from obligations which arise from assurances it gave to counsel appearing before it. Is such tinkering an attempt to shield someone of wealth and influence at the highest levels or is there a rational explanation for it?

Mr. Cullen

The Deputy knows that is not the case.

Mr. Kenny

If they are hived off into private session, why is it not possible to hear the nine days of private evidence given by Mr. Dunlop to the Flood tribunal which contains some important information?

I will not oppose this motion. This party wants accountability in the tribunal. We want it and all the tribunals to be efficient and cost-effective. We want the truth because, like the people, we can handle it. It is our right. If it is anything less than that, it will be, as the late John Kelly said here on one occasion, "a load of old bloody nonsense".

Mr. Cullen

That is exactly what the Taoiseach and the Government want.

Mr. Rabbitte

On behalf of the Labour Party, I am pleased to support the motion in the name of the Minister for the Environment, Heritage and Local Government to appoint his honour Judge Alan Mahon as chairperson of the Tribunal of Inquiry into Certain Planning Matters and Payments. I extend our good wishes to Judge Mahon and his colleagues, her honour Judge Mary Faherty and his honour Judge Gerald Keys in the important and demanding tasks that remain to be discharged by this tribunal.

I repeat my party's gratitude to Mr. Justice Feargus Flood for the work he completed before his retirement. There is no doubt that the planning tribunal had a shaky start where the difficulties it had with an elderly, dogmatic and somewhat irascible witness were greatly added to as a result of a sustained campaign to undermine its credibility. I do not have any doubt that those responsible for the systematic leaking of information provided to the tribunal in confidence were the parties who had most to lose from the effective and efficient operation of the tribunal, and therefore, had most to gain from the subversion of its reliability and integrity in the eyes of the public. Against that background, Mr. Justice Flood deserves that this House acknowledges that he has done the State some service.

The manner of the departure of Mr. Justice Flood is therefore all the more regrettable. It is genuinely impossible to say why the Taoiseach mishandled Mr. Justice Flood's resignation. Is it merely that the Taoiseach will not permit his left hand to know what his right hand is doing? Did his style of accounting to the House give rise to what lawyers would describe as an "inevitable accident", or is there a grand plan to reconfigure the planning tribunal to partisan advantage? Meanwhile, Deputy Harney has long since ceased worrying about what she does not know or why she was not told. Harney watchers will soon be tracking her movements by the Hubble telescope.

As Deputy Kenny recited, the Taoiseach knew the chairman of the Flood tribunal planned to resign a full month before he told the Dáil. The Tánaiste, Deputy Harney, was also kept in the dark. The Taoiseach expressed surprise in this House when he finally told us that Mr. Justice Flood wanted to step down. Reading from a pre-prepared statement, he said: "I have not had an opportunity to study all the legalities in the few hours since I have been made aware of these issues". He has not adequately explained why he kept the information to himself and did not men tion the toing and froing that had been going on since late May, when he finally brought the difficulties with costs to the attention of the House. The Minister for the Environment, Heritage and Local Government did not, in his letter to Mr. Justice Flood, request him to stay on and adjudicate on costs.

Mr. Cullen

I explicitly did.

Mr. Rabbitte

He made clear that the opposite was the case and that the Government did not expect him to deal with costs.

Mr. Cullen

The Deputy should read the letter.

Mr. Rabbitte

If the Minister has any doubt, we can read the letter into the record.

Mr. Cullen

We should do that.

Mr. Rabbitte

He also made it clear that the Government considered that Mr. Justice Flood's remaining on the tribunal as an ordinary member would make every future report from it liable to legal challenge.

During his contribution, the Minister added to our knowledge by making it patently clear that he regards the tribunal to be the property of the Government, not of the Oireachtas. The Minister received a letter on 16 June which the judge required to be immediately forwarded to the Clerks of both Houses. The Minister did not send it to either, but brought it to the Government. Only eight days later was it sent to the Clerks. Finally, through his own remarks, the Taoiseach allowed concern to grow that, in the absence of Mr. Justice Flood, the taxpayer may be exposed to costs for wealthy interests deemed to have obstructed the tribunal.

The 1997 amendment initiated at the behest of the Labour Party was intended to have a salutary effect, since the only effective sanction is an award of costs against the offending individual. I believe, however, that we should go further, and not only to protect the public purse. Lawyers and witnesses must have driven home to them the fact that while they argue, hedge, adjourn and prevaricate, the meter is always running. To spend time on one's feet before a judicial tribunal is to spend a scarce and expensive publicly owned resource.

A dilatory, lackadaisical or careless approach – and the belief that we have all the time in the world because someone else is paying – are the hallmarks of the party with the deepest pockets. Tolerating such an approach skews procedure for the benefit of those who can best afford to pay the most. Why can the power of the tribunals to tax the costs of parties appearing before them not be redefined to include the power to deduct the cost of time-wasting and red herring-chasing, no matter to whose benefit the ultimate findings of fact may be, and the power to order that the costs of the parties incurred as a result of such tactics should be borne by the time-wasting party?

The enormous cost of several ongoing tribunals cannot be ignored, particularly while the home help service is being cut and the back to education allowance restricted, not to mention the acute need for intensive care nurses in Crumlin Children's Hospital and elsewhere. We need a cheaper, more economical, more efficient and speedier method of inquiring into matters which, in the public interest, cannot be swept under the carpet. Tax evasion, for example, is not a victimless crime and even the possibility that compliant taxpayers may be liable for the costs of tax evaders in the current case is unthinkable.

The Government promises amending legislation to smooth the transition to the chairmanship of Judge Mahon and to enable him to shoulder the costs of adjudication burden. Very large sums of public money are at stake here and the public is entitled to cast-iron assurances from the Government that correct and legally sustainable procedures will be complied with. In the longer term, the Labour Party will constructively examine the proposals of the Minister for Justice, Equality and Law Reform to protect taxpayers' money. I repeat, however, that we are not prepared to agree to any proposals that would leave uninvestigated serious allegations of wrongdoing already in the public domain or already in the possession of the tribunals.

Mr. Cullen

No such suggestion was ever made by the Government either.

Mr. Rabbitte

The criteria according to which the Commissions of Investigation Bill must be judged are whether it is effective and workable and whether the private process by which reports are to be produced in future will be conducive to public confidence in their findings. In fact, it is a modest enough proposal, a further elaboration of a process that has been developed in recent years. It is forgotten that both the Moriarty and the Flood tribunals had sections of their terms of reference dealing with preliminary investigations. Essentially, the terms of reference permit such a preliminary investigation by the tribunal in private before moving to a consideration of the evidence at its public proceedings. This innovation was not of itself sufficient to control the costs.

Regardless of the merits of the Bill published today, it should be clear, as the Bill itself recognises, that the need for tribunals of inquiry operating under the 1921 Act has not been done away with. There are at least two reasons for this. First, the Salmon report in the UK makes the point that:

There are, however, exceptional cases in which such [inquisitorial] procedures must be used to preserve the purity and integrity of our public life without which a successful democracy is impossible. It is essential that on the very rare occasions when crises of public confidence occur, the evil, if it exists, shall be exposed so that it may be rooted out; or if it does not exist, the public shall be satisfied that in reality there is no substance in the prevalent rumours and suspicions by which they have been disturbed. We are satisfied that this would be difficult, if not impossible, without public investigation by a inquisitorial tribunal possessing the powers conferred by the Act of 1921.

In the sort of circumstances that Salmon described – when a crisis of public confidence occurs – a public inquiry becomes necessary. That is and must remain a choice that the elected representatives of the people are entitled to make, having carefully weighed the relevant factors.

That reality is reflected in the Government's response to the ruling of the European Court of Human Rights in Strasbourg this week on the Pat Finucane case. The court ruled that the UK Government had failed to investigate adequately allegations that the security forces colluded in the murder of Mr. Finucane. The Taoiseach repeated his previous call for an independent public inquiry. I join with the Taoiseach, the Finucane family, the SDLP and others in restating my own belief that a public inquiry is required.

None of us means by that a Government-appointed investigative commission that conducts its work in private and is disabled from resolving any issue where there is conflicting evidence. Due to its subject matter, a report from a body operating along those lines would fail the essential test. The manner in which the report was compiled and produced would not be conducive to public trust in its findings. Second, it is only a tribunal of inquiry appointed by the Government on the authority of the Houses that is empowered by Article 28.4.3º of the Constitution to inquire into discussions at Cabinet meetings.

The argument of the Minister for Justice, Equality and Law Reform, Deputy McDowell, is that tribunal costs – which derive almost entirely from legal representation and which by and large are borne by the taxpayer on behalf of all represented parties – can be reduced if not eliminated where investigations are conducted in private. Ideas along these lines have been suggested for some time and the Minister is to be congratulated for reducing them to concrete proposals. However, while public concern has been growing for several years about the increasing cost of lawyers, the Government has been a very recent convert to this issue. It has been in office for six years but has done virtually nothing to control or reduce legal costs, either in respect of tribunals or in other areas of the law. Indeed, the Minister's principal contribution was to negotiate an €800per diem increase for tribunal lawyers.

Will the Minister's Bill be used to foreshorten the work of the Mahon tribunal? Under section 3(1) of the Bill he published today, this is a matter for the Government since only the Government may initiate such a referral and only then, presumably, with the assent of the tribunal. The major question that arises is who would determine what might be referred to the commission for investigation and what would be left to the tribunal.

I am disappointed that the Ceann Comhairle ruled out of order a Labour Party amendment – because it was outside the scope of the motion – that sought to enable the Mahon tribunal, if appropriate, to allow the three judges to sit in parallel where feasible. I regret that this was not allowed to be put to the House.

Mr. Cullen

That is a matter for the judges. It is not for us to dictate how they order their business.

Mr. Rabbitte

It was an enabling power, that is all. We are not dictating it.

The Taoiseach

We are not changing any of the terms of reference. If we tried to change the terms of reference we would have another difficulty. There is no reason to do so. I hope they do sit in parallel for some of the modules. I agree with the Deputy, but they can do that under the present terms of reference.

Mr. Rabbitte

I merely raised the point for discussion because when many people saw three extra judges being appointed to the tribunal they assumed it was going to speed up. They also assumed that different modules could proceed in parallel and that the work would be done simultaneously but they have been surprised to find that is not the case.

It is clear from the Bill that a report from a commission may, in turn, lead to the subsequent establishment of a full tribunal of inquiry. I am particularly disappointed that the Government appears to have abandoned the option of investigation by an Oireachtas committee where this would be appropriate. The DIRT inquiry completed its public hearings within six weeks and recouped almost €500 million for the Exchequer. It would not be a major task to address, through legislation, the issues raised in the Abbeylara judgment, so that investigation by an Oireachtas committee is available as an economical and effective alternative in appropriate circumstances and as envisaged by the Supreme Court.

Not only has the Government not taken any action in this area, it has reneged on the commitment it made to implement the key recommendation contained in the DIRT report on the introduction of legislation to provide for the appointment of parliamentary inspectors. It was envisaged that a parliamentary inspector could be appointed to inquire privately into matters of public concern as a preliminary to a possible Oireachtas inquiry. This was the case with the role of the Comptroller and Auditor General in the DIRT inquiry.

On foot of the inspector's report, it would be for the Oireachtas to decide whether to proceed with its public inquiry or to establish an independent tribunal of inquiry. If the Government is serious about establishing a procedure for inquiring into matters of public interest without costing the Exchequer an inordinate amount of money, it is inexplicable that not only has it not dealt with the issues arising from the Abbeylara judgment, but also that it has abandoned the commitment to the parliamentary inspector model.

It is now time to carry out a review and overhaul of our tribunal legislation in its entirety. In 1997 and 1998, three separate Acts were passed, while last year there was a fourth and in the autumn there will be a fifth such Act. The second 1998 Act repealed and replaced the amendments carried out by the first Act of that year, which, as I have pointed out, was despite our warnings and those of many of my colleagues, that the Government had adopted an incorrect and inadequate approach. We need to abandon such an ad hoc approach.

We have had more than enough experience of inquiries and other forms of statutory investigation to make an assessment of the full strengths and faults of the various systems. Learned articles have been written and seminars held, and the bones of a procedure for the future are already apparent. The authors of the legislation under which the Committee of Public Accounts conducted its inquiry into DIRT, put into practice some if not all of the lessons we have learned.

There is a need for a two-stage process built into the inquiry system. The legislation published by the Minister for Justice, Equality and Law Reform, Deputy McDowell, attempts to deal only with the first stage of a tribunal of inquiry, which is largely interview and paper trail driven, and takes place in private. That process will be more extensive than it could ever justifiably be in a public forum, with legal representatives of every person with any conceivable interest being in continuous attendance.

If that process uncovers nothing of concern, that will be an end of the affair. If it reports undisputed facts, it will be for the relevant authorities to act on foot of them. If there are controversies as to the facts, however, and if the issues are of serious public importance, then that process will at least have defined the issues to be dealt with by further action. It should then be a matter for the Houses to determine what, if anything, should follow from the published report. If further inquiry is needed, using powers of compellability, the preferred option for consideration should be a reference to an Oireachtas committee. However, if that proves impossible or undesirable because of the anticipated duration, the parliamentary cycle, the politically contentious nature of the subject matter or any other reason, then a tribunal of inquiry should be appointed.

In either event, that second stage would take place in public and uncontested evidence already available would be taken as read. Issues would be narrowed down and the evidence confined to reconciling the conflicts on those issues.

Acting Chairman

We now move to the Technical Group and there are a number of speakers under that heading, including Deputies Ó Caoláin, Gormley, Gregory and Joe Higgins.

Caoimhghín Ó Caoláin

The Taoiseach is welcome to stay.

Acting Chairman

There will be a time limit for each speaker in this group.

Caoimhghín Ó Caoláin

It was inappropriate of the Taoiseach to leave the Chamber following the contributions by Fine Gael and the Labour Party. The input of the Technical Group is just as relevant to this issue or any other. The Taoiseach has done the House a discourtesy by leaving now.

The motion before us arises from the resignation of Mr. Justice Feargus Flood as chairperson of the Tribunal of Inquiry into Certain Planning Matters and Payments. I wish to put on record our appreciation for the work of Mr. Justice Flood, who deserves praise for his conduct of the tribunal. The Flood tribunal has helped to expose much about the corrupt nature of planning in this State over many years. Despite its duration and cost, the tribunal has also ensured the return of much taxation revenue both directly and indirectly as a result of its activities.

There are questions to be answered about the circumstances which led to this motion coming before the Dáil. The Oireachtas should have been informed of the matter at least as early as 16 June when the Minister, Deputy Cullen, received the letter from Mr. Justice Flood stating his wish to resign as chairperson of the tribunal. The Government was aware of this from late May, yet we were not informed about it by the Taoiseach until last week, on 24 June. The Taoiseach stated yesterday that, "simply to have circulated the letter would have given rise to wild and damaging speculation that would be contrary to the best interests of the tribunal". I believe the opposite is the case. It is the holding back of information that leads to legitimate speculation. That is why questions have been raised about the handling of this resignation, and it is no wonder, given the action of this Government in gutting the Freedom of Information Act. It cannot expect public trust in the wake of that anti-democratic move.

The Government has indicated that it will have to legislate to ensure that challenges on costs, because of the resignation of Mr. Justice Flood, do not succeed. It seems to be confident that such legislation will succeed in its purpose. Let us hope so or else we will face the nightmare scenario of the taxpayer paying massive legal costs to some members of the rogues' gallery who have appeared at the tribunal.

The Government should also introduce separate legislation to properly regulate the exorbitant fees of legal teams involved in tribunals. There is a wider need for fundamental reform of the legal profession and, in particular, the whole area of legal fees and costs. Instead, however, the Minister for Justice, Equality and Law Reform, Deputy McDowell, has published this week his Commissions of Investigation Bill, which provides for private investigations. I am concerned that the Minister and the Government will exploit legitimate public concern over the cost of tribunals, to introduce a process which will go on behind closed doors and will lack the transparency and public accountability that is essential if truth is to be established. For example, new evidence recently emerged on the murder of Sinn Féin councillor, Eddie Fullerton. The events surrounding his murder, collusion by British forces and the role of the Garda Síochána, need to be fully and publicly investigated.

The interim report of the Flood tribunal confirmed that the former Minister, Ray Burke, enriched himself with the help of property speculators and developers, who themselves benefited hugely from the corrupt planning system. When the report was debated here last October, Sinn Féin tabled an amendment calling for the oil and gas exploration licences negotiated and granted by former Minister for Energy and Communications, Ray Burke, to be fully investigated by the tribunal. The Government rejected that amendment but I take this opportunity to call again for a public inquiry into the Corrib gas scandal – one of the greatest rip-offs of the Irish people.

I regret that the Labour Party and the Green Party amendments have been disallowed, because they merited support.

Mr. Gormley

On behalf of the Green Party, I wish Mr. Justice Flood the best of luck in his retirement. He has served the country well and his interim report will be remembered as a model of clarity that set the standard for future tribunal reports. We could speculate at length regarding the reasons he departed the scene and in all such cases conspiracy theories abound, but human factors should never be discounted when such important decisions are made. At 75, he has reached an age when thoughts of one's mortality become more frequent and, perhaps, he arrived at the conclusion that life is too short, even for tribunals.

That does not mean the Government attitude towards the tribunal can be excused. Its approach has been characterised by foot dragging, evasion and delusion. I recall vividly the wrangling over the terms of reference, the defence of Ray Burke by both the Taoiseach and the Tánaiste and the Taoiseach's memorable statement that we hounded an honourable man out of office. Mr. Burke is not an honourable man and he and others, who deliberately obstructed the work of the tribunal, should not have their costs paid. The introduction of legislation that would avoid such a scenario will have the full support of the Green Party.

The notion that Mr. Burke and his ilk could be supported to the tune of €10 million by the taxpayer would be almost enough to send the exasperated public into revolt. It would defeat almost entirely the purpose of the tribunal, which is not only to establish what wrongdoing took place but also to ensure wrongdoers are punished in some shape or form. The people demand no less. Public odium is not sufficient punishment for those thick skinned and greedy individuals. Their motivation in engaging in corrupt practices was money and it is through monetary penalties that they can adequately be brought to heel. I am glad the Minister will introduce legislation in this regard in the autumn. I look forward to that and it will have the support of my party.

The Government spin doctors are suggesting this is further evidence the tribunals are a waste of money and a number of irresponsible Ministers have added fuel to the fire by suggesting the tribunal could take up to 15 years to complete its work. If the work is organised properly, it could be completed in a much shorter time. The work of the Committee of Public Accounts, under the late Deputy Jim Mitchell, stands as a shining example in this regard. It is possible to carry out a thorough investigation at a fraction of the cost if the political will is there.

The difference between the Public Accounts Committee and the main representatives at the tribunal is the latter belong to the legal profession, which believes its extraordinary gifts require extraordinary remuneration. It was once said, jokingly, that the primary talent required of a barrister is the ability to keep a straight face when he is handing the bill to a client. While the Minister of State, Deputy Brian Lenihan, may not agree, stories are emerging of junior counsel paying off their mortgages on the strength of their work at the tribunal. While these stories may be apocryphal, the legal fees charged at the tribunal are scandalous and in general the legal profession needs to be sorted out. The late Noel Browne said when he entered the House he was told "you should leave the law alone". Given the background of the Minister for Justice, Equality and Law Reform, the law is in safe hands.

The Government has not learned much from the tribunal. Last week we introduced a Private Member's Bill relating to the implementation of the Kenny report, which would have ensured the corrupt practices that were witnessed would no longer take place. Our Bill was taken in the House and the Minister for the Environment, Heritage and Local Government did not even have the courtesy to turn up.

Mr. Cullen

I was attending another forum. I cannot be in two places at once.

Mr. Gormley

The Minister was in the Oireachtas. It has been reported that he has given permission for a road to be built through Carrickmines Castle. Will he confirm if this is true? If so, when will he make an announcement in the House? The link between Fianna Fáil, the Progressive Democrats and property speculators has been maintained to this day. That is why there is continued corruption and we continue to have tribunals.

Mr. Eamon Ryan

They all met up in Jackson Way after it was located.

Mr. Gregory

Following six years of the Flood tribunal, it remains essential that all allegations of corruption should be fully and openly investigated, exposed and addressed. Having spent so much time unveiling a range of allegations of corruption, the tribunal must be get on with and complete its work. I trust there will be no attempt to curtail the investigations or to conduct private hearings to deal with the essential work of exposing corruption. If that were to happen, it would be welcomed only by those who have something to hide and who wish to avoid public examination of their activities and financial interests.

One of the reasons the process has taken so long is the tribunal has had so many allegations of corruption with which to contend. The scale of corruption that has been revealed requires that all allegations should be fully investigated and dealt with transparently. This can be done at the same time as confronting the appalling scandal of the fees paid to members of the legal profession at the tribunal. Their greed has undoubtedly added a tier of scandal in the public mind and it is so outrageous that it is in danger of undermining the entire process. There will be unprecedented public outrage if the taxpayer ends up paying the significant costs of builders and politicians who have been found to have made and received corrupt payments.

While this issue and the issue of obscene payments to the legal profession must be addressed, sight cannot be lost of the main enemy – those who have amassed millions by corrupting the planning and political systems, whether they were businessmen, lobbyists or politicians. It is only in this way that corruption can be finally rooted out.

Mr. J. Higgins

I was a strong advocate in 1997 of the need to investigate the corruption that was manifest in the planning process through the relationship between landowners, speculators and certain politicians. That arose from my experience as a member of Dublin County Council during the development plan process in the early 1990s. The corridors of the council building resembled a wild west saloon when the ranchers and the cowboys hit town, the difference being that in the mythical old west, they did so after hitting pay day having done a great deal of hard work.

Mr. Kenny

Just like Trampas.

Mr. J. Higgins

The gangs of Dublin county hit the council in anticipation of the massive pay day that would accrue if councillors zoned land for housing and industry, irrespective of the planning arguments. They then would go on to orchestrate the obscene speculation, as a result of which the price of building land increased relentlessly to satisfy the speculator's greed. Young people who tried to furnish themselves with a home paid and continue to pay for this greed through the quadrupling of house prices in the greater Dublin area and corresponding increases in other regions.

No effective action has been taken by the Government. The speculator's greed was realised courtesy of Fianna Fáil councillors and those representing Fine Gael, with one or two exceptions, when the real life saloon up the road from the council building, Conways pub, emptied peremptorily following telephone calls from party whips. Councillors rushed to the chamber, with the stench of brandy and cigars preceding them, to vote in favour of rezoning motions. They never participated in the discussions on the motions and for the most part they knew nothing about the land concerned. We suspected then, but did not know, that the bulges in their breast pockets were brown paper envelopes given to them in Conways by the bagmen for the landowners and speculators to buy their votes. The parties concerned knew very well this had been going on for years but did nothing to stop it. The Government still fails to bring in legislation to outlaw speculation in building land.

The corruption must be investigated. Those investigations must continue and the truth must out. It is unfortunate that the tribunals themselves are now the occasion for the manifestation of another kind of greed. The fantastic fees demanded by leading barristers will soon see more millionaires presiding as lawyers at the tribunal than the sum total of rogue millionaires that they are investigating. That is a source of anger and scandal for compliant taxpayers, such as those householders the Minister for the Environment, Heritage and Local Government thinks he can bludgeon into giving up their bin tax protest. The Minister and the Taoiseach will regret that as those people's anger will be fuelled further by what is going on in the tribunals.

The Government refuses point blank to take on the greed of the legal profession, unlike its approach to low paid public service workers, carers and the weak. I reluctantly support today's amendment because the tribunals are dragging on too long. I do not understand why they cannot be foreshortened, with competent investigators doing the background work. Those charged could then be brought in and the charges put to them. They can have a chance to answer and then a verdict can be reached. It happens in the District and Circuit Courts every day of the week. Why does this have to go on for years?

Ms O'Donnell

I commend the resolution to the House on behalf of the Progressive Democrats. We have had tribunals of inquiry now as a constant backdrop to political and public life for more than ten years. At times it appears they operate in a parallel universe to the Dáil, which begat them. Some say there is now tribunal fatigue, while others say tribunal costs now outweigh the benefits. However, most people agree that the tribunals were very necessary and remain necessary. The tribunals, and particularly the one we are discussing today, have done a vital job to expose corruption and dishonesty in public life. They have done what the Dáil had failed to do.

People hope our public life is better off as a result of the clear light that has been cast on previously obscure and forbidden zones of political careers and private enrichment, as I believe. I record the appreciation of my party for the work Mr. Justice Flood has done since the inception of the tribunal of inquiry into planning matters in November 1997, so long ago.

The interim report the tribunal produced last September was a critical contribution to ensuring that wrongdoing and corruption could not remain, as before, veiled from public view and unchecked by the arms of the State, in particular in this case by the Oireachtas. Rather than tribunals bringing politics into disrepute, they have helped create a climate where honesty in public life is finally becoming a basic requirement that people will be held to. What the planning tribunal and others have exposed is not that political life here is itself corrupt and dishonest, which would be wrong, but that certain individual politicians normalised corruption and dishonesty in their political life and in their dealings with this House and with the public.

It is vital that we do not forget the central findings of the tribunal in its interim report. It is vital we remember how important it was to this House and to the public that the findings should have directly concerned a former Minister for Foreign Affairs who grossly misled this House. In its interim report published last September, the tribunal referred to its amended terms of reference and stated:

The Tribunal was obliged to investigate the entire public life of Mr. Burke from 1967 to 1997 to see whether any substantial payments were made or benefits provided to him which, in the opinion of the Tribunal, amounted to corruption, or involved attempts to influence or compromise the disinterested performance of public duties, or were made or provided in circumstances which may give rise to the reasonable inference that the motive for making or receiving such payments was improperly connected with any public office or position held by him, whether as Minister, Minister of State, or elected representative.

The tribunal said it was able "to pronounce with finality" upon certain payments made to Mr. Burke. So, did Mr. Burke receive corrupt payments? Yes he did. Did he act for private interests while in public office? Yes he did. Did he lie to the tribunal? Yes he did.

The public has made up its mind about Mr. Burke, about the politics he indulged in, and about the political culture from which he came. The findings of the tribunal performed a valuable service in bluntly calling a spade a spade after the most detailed and methodical inquiry. It would appear Mr. Burke cares little for the findings of the tribunal, for the Oireachtas or for the court of public opinion. Is it any surprise therefore that, according to reports, the highest costs contested and sought from this tribunal established by the Oireachtas are from a man who misled the Dáil and who has been found by the tribunal to have behaved wrongly and corruptly? The brazenness, the bluster and the bombast are familiar. We may be appalled but what really matters is that it ought not be allowed to work, as it clearly did in the past.

I note newspaper reports from what are described as "close family sources" that Mr. Justice Flood based his decision to resign now as chairman on the belief that the costs issue was likely to drag on for several years with "some parties likely to challenge his integrity, fitness and decision-making". We all know and accept that it is a normal part of our adversarial justice system that judgments are appealed on whatever grounds lawyers can bring forward: matters of law, matters of fact, due process, and sometimes even potential conflicts a judge may have had. However, it is extremely rare that a judge's personal integrity is challenged. It would be deeply worrying if this is part of Mr. Burke's plan, to be executed through his legal team, but it is hardly surprising given the tactics employed by Mr. Burke in his long political career. These kinds of tactics cannot be allowed to succeed and it would be a great scandal if they were allowed to do so.

It is important that the House approves this motion and thereby expresses its confidence and backing for the new chairman and new member of this tribunal and for its future decisions about costs of past hearings as well as for its continuing hearings. The truth is that the main adversaries and most virulent opponents of the tribunal are not acting in the public interest at all. It suits their interests very well that public confidence in this tribunal and others should wane and be diminished. Their concern is not to save public money but to close down this instrument of public inquiry and exposure. I agree with Deputy Rabbitte that we need to review and enhance our ability in the House to have an inquiring role and to seek all other measures of inquiry and exposure of corruption in public life.

If we are candid with each other here it is true that the high legal costs of tribunals generally have caused a great deal of public concern, particularly when there are so many needs in many areas of the public services. We must find ways to make tribunals of inquiry more cost-effective and avoid a gravy train for lawyers. The measures proposed this week by my colleague, the Minister for Justice, Equality and Law Reform, are a very welcome addition to the tools available to the State to establish facts but we will always need the public mechanism provided by the 1921 Act.

As we know from other countries, the potential for corruption is always there. While we have made progress in creating a political and legal climate that counteracts corruption, one can never rest easy. The human capacity for greed, for self-enrichment and for immorality is a base but common instinct. Against this background, the House today has the opportunity to renew our backing for the tribunal of inquiry into planning matters. It is important we vote and renew that backing. My party and I strongly encourage the House to do so. We look forward to a successful conclusion to its inquiries, including the critical matter of the determination of costs.

Cleaning up politics has not come cheap but it is a long-term investment in our country's future. As the Tánaiste said last October, following the publication of Mr. Justice Flood's interim report, corrupt societies are not prosperous societies. Our ability to attract job-creating investment requires a clear demonstration that this is a country in which business is done fairly and openly, a country in which the rule of law applies to all, regardless of position, and a country without golden circles, cosy cartels or inside tracks.

Mr. Allen

I echo the words of my party leader, Deputy Kenny, in thanking Mr. Justice Feargus Flood for his hard work and impeccable honour over the last six years. His interim report cut through so many contentious issues with clarity and honesty and was a testimony to the courage he showed. It seems like only yesterday that he issued that report. Since then, a lot has changed but not a lot has been done. For example, Ray Burke's prospects seem to have improved from a situation where he was the subject of public dis gust to the possibility of having his €10 million legal bill paid for him. There has been a steady drip-feed of spurious information designed by those in the firing line to rubbish the tribunal and its interim findings. Above all, there is the overwhelming impression that the Government would like to see the entire process collapse in order that the corrupt, greedy and shameless will get away scot-free.

It is an open secret that Fianna Fáil wants the tribunal to collapse or go on indefinitely in order that most of the issues which need to be investigated will not be for many years.

Mr. B. Lenihan

The Deputy does not have a shred of evidence for that suggestion.

Mr. Allen

It dare not say it but through its actions in relation to Mr. Justice Flood's retirement, its words on costs, its sneering contempt of this House on the issue and its spin doctors – last week I heard what I would call agents of Fianna Fáil belittling and bad mouthing the tribunals—

Mr. Cullen

That has not happened.

Mr. Allen

It has. They have belittled the tribunals and tried to influence the public attitude towards them.

Mr. Cullen

The Deputy is grasping at straws.

Mr. Allen

It has proven that when it comes to transparency and rooting out corruption, the Government is totally and morally bankrupt. While it is clear that some in certain corners do not want to hear what the tribunal has to say, we cannot be distracted by them. My party is of the firm view that necessary legislation should be enacted to enable the tribunal to work as quickly as possible. For justice to be done and be seen to be done, time is of the essence.

To be fair, some tax bills have been settled because of the work of the tribunal. Politicians and businessmen have been exposed and ostracised in public. The tribunal, even though it has been working slowly, is working and, despite Government spin to the contrary, must be allowed to work. Many of the time delays have been the result of the deliberate tactics used by people and their defence lawyers. Serious questions must be raised about the actions of individuals who have not allowed the tribunal to see the full picture.

What is more, the Minister for Justice, Equality and Law Reform may wish to take note of the comment in the media and this House suggesting that he is attempting to deal with the issue of costs through the legislation he outlined yesterday but which will not be taken until October at the earliest. The whole issue of costs might be better dealt with through reform of the profession of which he is a member. Let us call a spade a spade. The reason tribunals cost so much is that the legal profession is being paid far too much. Instead of tackling the vested interests, with whom he is no doubt on speaking terms, the Minister has attempted to further denigrate the tribunal process by suggesting it is the nature of tribunals which is at fault. In fact, we heard today that he sanctioned massive fee increases for the lawyers involved with the tribunal. It is not the nature of the tribunals which is at fault but the greed of the vested interests.

If the Government was serious about reducing costs for tribunals and litigation, the Minister for Justice, Equality and Law Reform would be leading a campaign to reform the law profession. He wants to treat the symptoms instead of the cause. Some Ministers – I am not sure whether the Minister for Justice, Equality and Reform is one of them – have proclaimed that tribunals will continue for another 50 years. If it really mattered to them, they would not have waited for more than a year to accede to Mr. Justice Flood's requests, made in good faith, for extra judges. They provided two extra judges and we all anticipated that the tribunal would work at a faster pace but it seems to have gone into reverse. Matters have not progressed as we all anticipated.

It is extraordinary that we are being lectured on costs and delays by a Government which is directly responsible for dither and delay throughout the process. Why is it stalling when it is possible that the Taoiseach may need to go before the tribunal to clear his name, which is surely in his own interest? Is it not unfair to those mentioned in the tribunal that they must wait so long to have their names cleared or have the issues settled once and for all?

The Flood tribunal was set up to make accountable those in positions who abused their powers. However, this is the least politically accountable Government we have ever had. Its standard operating procedure is to bypass the people's representatives in Dáil Éireann, leak important announcements to the media, get maximum coverage and avoid all but the minimum amount of scrutiny. It sounds like a recipe for another tribunal in the future. One has to ask if we can really believe matters have changed when we are subject to denials that there have been any cutbacks since the general election. How can we trust the Government in anything it does when promise after promise is broken and even its supposed watchdog, the Minister for Justice, Equality and Law, downplays his party's promise of 2,000 extra gardaí?

The Flood tribunal has been a painful process but we must get to the truth which involves political backbone from the Taoiseach and the Government in the future. The Taoiseach has given a guarantee that the allegations levelled against him by Tom Gilmartin will be heard in public. However, he must also clarify if the tribunal will conduct a public inquiry into Government decisions to grant valuable tax designations for properties in the 1990s. As Minister for Finance in the dying days of the Reynolds Government, he made such a decision in relation to an Athlone site in which a well known Fianna Fáil supporter and financial backer had an interest. We must be told if and when these issues will be dealt with and if they will be dealt with in public or referred to the back room procedures which we are now being told will come about.

If the Government really cares about justice and transparency, let it ensure a simple, prompt transition between Mr. Justice Flood and Judge Mahon. Above all, let it ensure Ray Burke and his ilk, whose disgraceful behaviour has brought shame to this House, will get the justice which is coming to them. What is needed ultimately is a sea change in its attitude towards accountability. This cannot happen while the Minister for Finance is in Cheltenham and his Minister of State is eroding rights contained in the Freedom of Information Act, nor can it happen while the Taoiseach professes accountability while only gracing us with his presence two days a week on very few weeks of the year. Above all, it cannot happen while an Administration which states it is doing all it can to help the tribunal is at the same time effectively undermining and rubbishing its credibility.

Let us hope a new chairman of the tribunal leads to a new era in rooting out corruption and that by the time we meet again in late September the Government will have opened a new chapter in its own behaviour. I wish to repeat a question put by the Fine Gael leader yesterday. He asked if any member of the Government was compromised in any way by the reforming procedures of the tribunal process or in dealing with any of the other tribunals sitting at present. The leader of Fine Gael has written to the Taoiseach to clarify the situation. We would welcome an early and prompt response.

Mr. B. Lenihan

I have no doubt that no member of the Government is compromised by the proceedings of the tribunals. The repetition of suggestions such as that in this House—

Mr. Allen

It is a question.

Mr. B. Lenihan

It is a question containing an insinuation. It is the type of question that is deliberately posed in this House to set out the kind of insinuation that has poisoned public life in this country in recent years.

Mr. Allen

It is the Minister of State's party which has poisoned public life.

Mr. B. Lenihan

I compliment Mr. Justice Flood's good work in identifying those who have poisoned public life. I do not take issue with that. I compliment the Minister for the Environment, Heritage and Local Government for his comprehensive account of why these resolutions are before the House, the steps that will be taken and the legislation that will be then required, as we all agree, to put the tribunal in a position where the costs issue can be determined. I take it from the indications of support from the other parties in the House that there is universal agreement with the substance of what the Minister has proposed and what is before the House.

That has not of course avoided a debate in which various points have been made and canvassed, but one crucial point that has to be reiterated is the letter that was sent to the Taoiseach by the chairman of the tribunal on 30 June confirming the position. It stated:

I refer to my correspondence with the Attorney General and Minister Cullen on the above matter, in which the reasons underlying my resignation are set out. I note in the public press statements to the effect that 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.

These were signed articles in the public press. They were not orchestrated by alleged spin doctors coming from this side of the House, and they did suggest that inaction by the Government in relation to requests for additional judges or other matters caused frustration and led to Mr. Justice Flood's resignation. That is confirmed by the chairman of the tribunal as untrue. His letter went on to state:

Again, 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 of the Government of any kind.

Thus, the suggestion that any conduct of the Government led to this conclusion is simply untrue. Mr. Justice Flood goes on to state:

My relationship with the Government is through the Department and 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.

Thus, the chairman of the tribunal has had an exceptionally cordial and co-operative relation ship with the Attorney General during his tenure of office, which commenced in late 1997. It had been conducted through former Attorneys General, David Byrne and Michael McDowell, and the present Attorney General, Rory Brady.

"Exceptionally cordial and co-operative" are hardly the words of a chairman of a tribunal whose work is being frustrated by alleged Government spin doctors. They are hardly the basis for a suggestion that this Government has in any way hampered the operations of that tribunal. Quite the contrary. There has been an exceptionally cordial and co-operative relationship between the Flood tribunal and the Government.

Deputy Kenny went so far as to suggest that Fianna Fáil and the Progressive Democrats cannot claim ownership of this tribunal, and he is quite right. The tribunals are of course creatures of the Houses of the Oireachtas, but we are entitled to point to the fact that we have had this exceptionally good relationship with Mr. Justice Flood, and I thank Mr. Justice Flood for acknowledging that fact and putting it on the record. That was a courageous step. I doubt it will attract the same headlines as some of the suggestions which were canvassed in recent weeks about his resignation. Nevertheless, he has put it on the record and it is important that we reiterate that in this House.

That is the context in which we have to judge the further set of suggestions and insinuations that were made in this House in the course of this debate by Deputy Kenny and others. It was suggested that in some way, the Taoiseach or the Minister for the Environment, Heritage and Local Government were less than candid or open in the House regarding the circumstances surrounding the resignation of Mr. Justice Flood. The fact is that if there was any delay in this matter or any want of candour on their part, it was entirely prompted by the need to obtain advice from the Attorney General.

As Mr. Justice Flood points out, his channel of communication with the Government at all stages was the Attorney General. It was only natural, right and proper that the Taoiseach should seek comprehensive legal advice about any correspondence received from Mr. Justice Flood and that before the Minister for the Environment, Heritage and Local Government transmitted correspondence to the Clerk of the House, he too should seek that necessary and essential legal advice on a matter of such complexity.

There are no clouds of confusion in this matter. Mr. Justice Flood has resigned, and we should thank him for the work he has done. He has done signal public service to this State in exposing a degree of wrongdoing, malpractice and unethical behaviour which existed among politicians who were prominent in the public life of this State.

While the politicians were prominent in public life, most of the wrongdoing related to the operations of municipal and local government. One of the cautionary aspects of the Flood report is the danger of vesting too many powers in local government. We often hear calls from various sides in this House to give local government more power, but a careful perusal of the Flood report would suggest the contrary conclusion that we are better off in a small jurisdiction such as this—

Mr. Allen

Is the Minister of State reckoning on that already?

Mr. B. Lenihan

That happens to be my personal position. I am not speaking for the Government in this issue. If we trace the history of local government back to the 1898 Act, this has not been the first episode of this character in local government. It has been the largest and most outrageous but not the first.

I wish Mr. Justice Flood a happy retirement. He has worked hard and undertaken his duties in a conscientious manner. I wish him well in his retirement. I also wish Judge Mahon well, and I agree with Deputy Rabbitte on one point. I shared his misapprehension that when three judges were assigned to the work of this tribunal of inquiry, it might be possible for them to sit separately and determine issues in a separate way. Were that done, I have no doubt that it would expedite the work of the tribunal. Again, as was made clear in the course of this debate, that is a matter for the tribunal itself to determine. I welcome Deputy Rabbitte's stating of the fact in the House that he would like to see that happen. If it does assist in expediting the work of the tribunal in dealing with more of these modules, then all the better.

So much for the politics of this matter. There is no grand plan to reconfigure the Flood tribunal to party advantage but there is on this side of the House, as I am sure there are on all sides, an anxiety to see how this operation can become cheaper, more economical and speedier in determining the issues involved.

One of the reflections I would like to make on it relates to the question of private investigation and the commission on investigations legislation which the Minister for Justice, Equality and Law Reform has tabled before the House. This is important legislation, and there is no suggestion that it is an attempt to exclude matters from the public domain. The first tribunal in the recent past which achieved great success and received many compliments was the tribunal led by Mr. Justice McCracken on certain payments connected with Mr. Dunne and the former Taoiseach, Charles J. Haughey. If one looks at that particular report, one of the interesting features of it is that it is brief and that the work of the tribunal was done very quickly.

One of the reasons that happened was because there was an extensive private investigation conducted on a separate basis by Judge Buchanan before the tribunal of inquiry itself proceeded. That is a salutary lesson that we should look at regarding the operations of these bodies. A lot of the sifting work should be done on a preliminary and private basis. That is not to exclude from the public domain the necessary investigation that has to take place in public where serious issues arise. However, at least if that private phase exists in a structured way prior to the tribunal coming into existence, that should expedite the operations and minimise the costs.

As regards Oireachtas investigations, there is no doubt that the decision of the Supreme Court in the Abbeylara case has put a considerable restriction on the operation of this type of inquiry. It is desirable that Oireachtas committees should be able to investigate the Administration itself to the utmost degree, but I have a concern about Oireachtas committees adjudicating on matters where questions of good name, reputation or misconduct arise. The reason for the 1920 Act in the first place was because the parliamentary machinery that operated in the House of Commons was inadequate to investigate political scandals. It was the Marconi scandal and the farcical investigation that led to the 1920 Act. I am not convinced that partisan politicians can make judicial determinations about themselves. I remain to be convinced of that.

Mr. Gilmore

I wish to join colleagues in supporting the motion to appoint Judge Mahon to be chairperson of the planning tribunal and to appoint Judge Gerald Keys as the third member of the tribunal. I join colleagues also in paying tribute to the work of Mr. Justice Flood and to wish him well in his retirement.

This tribunal was established by the Dáil and Seanad Éireann in October 1997. Back then few expected that it would report in as forthright a manner as was demonstrated in its second interim report. Nobody anticipated either that six years later the tribunal would have completed an investigation on only two issues, that the legal costs associated with these issues would still not be determined, that conceivably the taxpayer could be exposed to the full bill and that the tribunal would have only commenced public investigation into the wider issue of corruption in the planning process.

This is not to criticise the tribunal or its members – far from it. This tribunal has done this State a great service. In its interim report it made it clear that no office holder elected or appointed is immune from accountability and that sooner or later any holder of public office in this State, no matter how arrogantly he or she exercised his or her power at the time, will be called to account for his or her decisions and especially for any decisions which were influenced by bribery or corruption.

This tribunal has lifted the lid on corruption in the planning process. It has helped to create a new and welcome climate in public life, in which there is no place for corrupt practices of any kind. This tribunal was established by the Dáil and Seanad. We have a continuing responsibility to ensure that its work is completed, that investigations are fully conducted and that certain matters are not buried or brushed aside. We also have a responsibility to ensure that the tribunal process is not unnecessarily lengthy or costly.

The first issue which faces the Dáil and Seanad at this point is to ensure that the good work of the tribunal is continued and completed – in that context, it is appropriate that this motion be passed – and the second issue is how that objective can be reconciled with the needs to minimise time and costs. The prolonged nature of this tribunal may yet frustrate its own objectives. It is fortunate that in the six years to date of the tribunal, none of the key witnesses has died or become incapacitated and was, therefore, unable to give evidence – even if reluctantly. We need to reflect on the consequences for the tribunal's inquiry of the possibility of key witnesses being unavailable to give evidence. What kind of report could the tribunal make on a particular module on which a person, who had made an important statement to the tribunal, had died or become incapacitated before he or she had the opportunity to give evidence and to be cross-examined? With every passing year, the risk increases that key witnesses will pass away and that the investigation of important matters will be frustrated.

The length of the tribunal is related to its cost. It is very difficult for an elderly, infirm pensioner, who has been refused a disabled person's grant for a downstairs walk-in shower or a bedroom conversion, to understand why a barrister at the tribunal is paid more from public funds in a week than would pay for the essential home conversion in the first place. It may be time, given the semi-permanent nature of this tribunal to consider the employment of its legal professionals on a full-time salaried basis – for which there is plenty of precedents in the Attorney General's office, the Director of Public Prosecutions office and other State legal offices – rather than on a fee basis as at present. That would only reduce the costs of the tribunal's operation; it would not necessarily reduce the costs applying to witnesses. The staggering figures which have been claimed by legal teams representing witnesses to this tribunal cry out for radical reform of legal costs and access to the law here. Unfortunately, there is no evidence that the Government intends to address at all the restrictive practices of and excessive charging by the well-heeled legal professions, much less with the enthusiasm they demonstrated in taking on working class people who drive taxis.

That being so, large claims for legal fees will continue to pour in as public hearings of the tribunals continue. It seems the costs of tribunals are related to the issue of public hearings, and I wonder if it is not possible to conduct more of the investigations, as is provided for in the terms of reference and legislation of this tribunal, by the use of investigators, interviews and examination of documents and to confine the public stage of inquiries to the consideration of the facts which are established by these investigations and to the hearing of serious and substantial conflicts of evidence.

The public hearings necessarily involve the presence of legal teams for each of the parties – those giving evidence of wrongdoing because they have to be cross-examined, those against whom the allegations are made and the tribunal itself. It is difficult to see how this can be limited or how the judges of the tribunal can confine matters like a judge can in a normal trial. The issue, therefore, which I think has to be addressed in the longer term is how to strike the balance between the investigation which may be conducted in private and those hearings which are held in public. The striking of this balance must enjoy public confidence, otherwise the whole purpose of the tribunals is defeated. The public want allegations of serious wrongdoing to be fully investigated and those responsible to be held to account. When it comes to corruption nobody should be allowed to get away with it. At the same time the public whom we represent want it done expeditiously and efficiently and they want a limit on the amounts of their tax euros which are spent on it.

Unfortunately, the way in which the Government has handled this issue over the course of the past week does not lend itself to an increase in public confidence in its approach to this tribunal. First of all we were told nothing about the correspondence of 28 May or nothing of the meeting which took place with the Attorney General on 26 May. We were led to believe a letter arrived from Mr. Justice Flood on 16 June, that the Attorney General was away and could not deal with it and that it was only when it came to Government on 24 May that the Taoiseach and perhaps other members of the Government could address it. The Minister for the Environment, Heritage and Local Government tells us today that the letter of 16 June was transferred to him by the Attorney General on 18 June for circulation to the Clerks of the Houses. Instead of circulating it to the Clerks of the Houses, the Minister for the Environment, Heritage and Local Government submitted it to the Government. I invite the Minister for the Environment, Heritage and Local Government, when replying to this debate, to explain to the House why the letter, which was transferred to him on 18 June for circu lation to the Clerks of the Houses, was not circulated to the Clerks of the Houses until 24 June and, second, given what the Government knew about Mr. Justice Flood's intention, why did I get the kind of reply I got to a parliamentary question on 17 June.

The Minister will recall that there was press speculation around the June bank holiday weekend that the Government was planning some changes in relation to the Flood tribunal. In response to that speculation I tabled a parliamentary question to the Minister for the Environment, Heritage and Local Government for reply on 17 June. I asked the Minister if he was considering – I emphasise the word "considering"– seeking the approval of the Houses of the Oireachtas for a change of the mandate, terms of reference or methods of tribunal of inquiry and if he would make a statement on the matter to which I got a one line reply, that there are no such proposals. That is an astonishing reply from a Minister who had a letter from Mr. Justice Flood indicating that he was going to retire and who knew for two or three weeks that was the case.

I also invite the Minister to respond to the issue of costs. It is not the case that the Minister in his letter of reply to Mr. Justice Flood of 24 June asked Mr. Justice Flood to address the issue of costs. I will refer to the particular paragraph. It reads:

The Government would consider it preferable if you were in a position to decide the question of costs. However, in the light of the contents of your letter it is clear that you are of the view that such is not the position. Legislation will be required to deal with this issue so as to reduce as best we can the risk of legal challenges arising from the proposal that the costs issue should be dealt with by a new chairperson.

The only interpretation that Mr. Justice Flood or anybody could make of that response is that the Government accepted, with regret, that he was not going to deal with the issue of costs. It most certainly was not a request by the Government to Mr. Justice Flood to deal with the issue of costs.

Minister of State at the Department of the Taoiseach (Ms Hanafin)

Like other Deputies in the House, I congratulate Mr. Justice Flood on his service, not only in the Flood tribunal over the past six years, but in the decade and a half of service which he has given as a judge of the High Court, and as chairman of the Commission on Disability. Like others here too, I wish him well in his retirement.

Our focus today is not so much on the tribunal but on the change in its chairmanship and on where the tribunal might now go. It is an oppor tune time for us to reflect on the benefit and value of the work done by this tribunal.

I suspect that when we set the tribunal up in October 1997, when we asked it to report by Christmas of that year, none of us anticipated that six years later, we would not have got to the end of the matter.

Ms Burton

Some people hoped.

Ms Hanafin

It was set up to deal with specific planning matters, and we amended the terms of reference thereafter to investigate other matters. It is right that due regard and cognisance should be given to the fact that serious malpractice and corruption was identified and discovered, and was made public in Mr. Justice Flood's interim report – malpractice and corruption going on in certain areas by a limited number of people, let it be said, throughout the country. The report has highlighted a low standard to which none of us in this House would want to stoop. It is on foot of the publication of that report that much of the legislation about standards and ethics for people in public life has been published. As late as today we published a code of conduct for office-holders, which sets out even more stringent guidelines than are contained in the statutory regulations already introduced in this House.

The work of the tribunal, albeit long and costly, has been very valuable, yet the developments of last week have caused us to look at two different things. One is the immediate one, the resolution before us with regard to the resignation of Mr. Justice Flood and proposing Judge Mahon as chairperson of the tribunal and Judge Keys as a full member of the tribunal. We wish them both well in their work. It is important that there should be a smooth and orderly continuation of the work of the tribunal in whatever way it sees fit.

It is also important to point out that that the work currently in hand and the issues currently being investigated, will continue to be investigated, in public, until they are completed. The technical name the tribunal gives to this is "module A5". That includes all the matters currently being looked at by the tribunal. The tribunal has indicated that it will take it until the end of December 2006 to complete it. So be it. It is important that where allegations have been made, they should be properly investigated – in public – up until that time.

I understand however that there are some 15 other modules which the tribunal wants to investigate. Obviously, when the Oireachtas extended the tribunal's terms of reference, more issues were raised by members of the public, more questions were asked and more allegations were made about various issues throughout the country. There is an opportunity for us to see how those modules, or allegations, or questions can be dealt with. Can they be dealt with more efficiently, more expeditiously and more cost-effectively? The legislation introduced by the Minister for Justice, Equality and Law Reform, Deputy McDowell, can go some of the way towards ensuring that. Deputy Rabbitte suggested that that would deal with the private and investigative role – but that it itself can be very cost-effective because at the moment we are paying senior counsel top fees to do what is basically the work of investigative journalists. There is no need for that element to be looked after by senior counsel. There will be an opportunity when we come back in the autumn, when we are looking at legislation, to see how we might assist the tribunal and how it might look at its own work methods in order to see how its ongoing work might be continued.

Arising out of last week's events, the outstanding issue was that of costs. That will need legislation in the autumn. It must be the determination of the Houses of the Oireachtas to ensure that the public interest and money is protected, that justice is done and seen to be done.

Deputy Rabbitte spoke earlier about people who would have delayed the tribunal, who would have been time-wasters, and asked if they could be penalised. The legislation allows for that, because under the Tribunals of Inquiry Acts, the legislation allows for a person being granted or not being granted costs, and direction can be given that tribunal costs – or another person's costs – must be made by a party who has appeared before the tribunal. The facility is there for the tribunal to do that. The basis on which that can happen is not set out, but the tribunal members can decide to do it. We have to deal with this issue in the autumn, and introduce legislation which is administratively enabling. The former tribunal chairman held power related to costs, and we must enable the incoming chairman to exercise that power too.

There are issues to be raised, and as the Government said, and the Minister for Environment, Heritage and Local Government, Deputy Cullen, said in his letter, it would have been preferable if the question of costs had been dealt with. It would have been more clear-cut. With the joint knowledge of all members of the Oireachtas, I believe we will be able to come up with legislation to deal with this.

Another issue which has arisen in the debate today is that surrounding the resignation of Mr. Justice Flood. It has been asked why the letter of 28 May was not made public. If people read all the documentation relating to that time, it will be clear that the letter was not made public because Mr. Justice Flood specifically wrote and asked that it would not be made public.

Mr. Rabbitte

With all due respect, nobody asked that question. You are answering a question which nobody asked.

Ms Burton

We were asking about the letter on June 16.

Ms Hanafin

I thought Deputy Gilmore asked about the letter of 28 May.

Ms Burton

No, he did not.

Mr. Gilmore

The Deputy might answer it since she is now asking the question.

Ms Hanafin

The answer is that Mr. Justice Flood did not want the letter released at that stage because he was going on his holidays. There is a written paper trail, as it were.

Ms Burton

No. The Deputy should read page four of the Minister's script.

Ms Hanafin

I misunderstood what Deputy Gilmore said. I thought he was referring to the question I am now answering.

Ms Burton

No. Why did it take until the 24th?

Mr. Rabbitte

It was being discussed in conclave.

Ms Hanafin

As I stated within recent days, the Attorney General brought notice of the letter to Government at the first opportunity where it could be discussed. It was arising out of that meeting and the quick discussion there that the Taoiseach said in this House that he had not had an opportunity to study all of the legalities. As we now know, there are a number of legalities attached to this issue, and they have to be addressed by us in two different ways – the resolution this week and the legislation coming up in the autumn.

Many issues arise from all of this. Where will the tribunal go in the future? How can it do its work more efficiently? That we have three judges now sitting has been referred to. Perhaps when this first module is out of the way, one can look to see if the judges can sit in parallel and perhaps speed up the work. I hope there will be a role for Members of the Oireachtas and for parliamentary inquiries, but we are aware of how we have fallen foul in this area in the past. It remains something we can look at.

Irrespective of what happens, and who said what to whom in recent weeks, we are now faced with the resignation of Mr. Justice Flood. We are trying to move forward on an interim report in anticipation of a final report on the tribunal. It is the aim of every Member of this House that the highest standards should be employed by everybody in public office – and by people working in public administration. Very often, the focus at this tribunal has been on politicians, be they local or national. A similar focus is necessary on a certain number – again a small group – of officials who were involved and named. That type of practice needs to be rooted out as well.

This week in the House we had a motion relating to the Civil Service code of standards and behaviour to match the one we introduced for ourselves as Members and officeholders. The high standards of ethics which Members of this House reach often go unnoticed. Today, at the handing over of the code of conduct for officeholders to the judge responsible for the Standards in Public Office Commission, the judge wanted to draw attention to the fact that every Member of both Houses of the Oireachtas had complied with his or her tax affairs. However, not one media person covered this. Regardless of what happened in the past, including those matters being investigated by the tribunals, they are not the standards to which Members of this House now adhere.

An Leas-Cheann Comhairle

There are just two minutes remaining. I call Deputy Crowe.

Mr. Boyle

On a point of order, when I checked with the Whip's office, I was told all the ten minute slots would be permitted.

An Leas-Cheann Comhairle

I intended to allow some leeway.

Mr. Crowe

I wish to share my time equally with Deputies Twomey and Boyle.

The constituency I represent, Dublin South-West, more specifically Tallaght, is synonymous with bad planning. Not too long ago we had large housing estates with badly built housing, no shops, poor roads, no community facilities and a bus service that was irregular and totally unreliable. Tens of thousands of people were located there with no access to jobs or the potential of employment. To this day people are still paying the price, socially and economically, of these decisions.

While we all congratulate Mr. Justice Flood and his staff for the excellent work they have done so far, there are obvious flaws in the tribunal system. It is clear that the public is growing increasingly cynical about tribunals. They are concerned at the fact that despite years of work and millions of euro, no one appears to have been brought to justice for the corruption and bribery that resulted in some of the most bizarre planning decisions in history of the State. No one has spent a single day in prison as a result of the tribunals' findings. A former Deputy was imprisoned for failing to co-operate sufficiently with a tribunal but significantly not for any of his alleged activities during the years. This process is full of contradictions. We have seen a tribunal set up to inquire into an elite golden circle of speculators and developers in society, creating a new golden circle centred around the Law Library.

The crooks and wrongdoers are still at large and the taxpayer continues to foot the bill. The total estimated cost of the tribunal to date in terms of legal costs claimed by third parties is a staggering €21.5 million, not inclusive of VAT. There are some reports indicating it might go on until 2015. It states public hearings will go on until at least 2006. I cannot help but think how things would have been different if this was not white-collar crime. What is happening – more importantly, what is not happening – speaks volumes about Irish society, the legal system and politics in this State.

While the tribunal deliberates, many throughout the State have to live with the consequences of corrupt planning decisions with poor infrastructure, bad roads, no community and sport facilities, inferior housing and a housing market increasingly out of the range of most couples and families. That is the real scandal behind the Tribunal of Inquiry into Certain Planning Matters and Payments and ordinary taxpayers are once again being asked to foot the bill.

Dr. Twomey

Like everyone else in the House, I thank Mr. Justice Flood for attempting to lift the veil of secrecy surrounding corruption in Irish political life for some time. As long as Government agencies award contracts worth millions of euro and as long as local authorities have the power to make hundreds of thousands of euro for their own members and close associates by means of dubious planning decisions, we will continue to see corruption in Irish political life. Corruption and politics are almost synonymous because of the power invested in politicians.

Apart from the tribunals, what else is being done? Transparency, accountability and a desire to at least try to control this self-interest and corruption by a few rotten apples should be the hallmark of any government, national or local. We all know it is still going on, as do senior members of political parties. Recent changes to the Freedom of Information Act do not inspire confidence in those in the media who will try to discover the elements of corruption that still remain. We seem to be putting the problem to one side in many respects.

The debacle about Mr. Justice Flood has taken the shine off many of the initial feelings we had that the tribunals would make a difference; it now seems nothing will change. As mentioned, the golden circle of developers and politicians continues to operate as usual. They fear nothing from any tribunal because they believe there is no political will to stop them, even if they were exposed.

The law profession continues to be the major beneficiary of all tribunals. It is odd that fees that exceed €1 million do little to cause excitement in Government circles. Last week on the publication of the Brennan report everybody was jumping up and down at the thought of hospital consultants earning €140,000 per year. Such figures would be considered paltry and laughable in the Law Library.

The only outcome of the tribunal may be to legitimise corruption in the planning system because justice is not seen to be done and people believe they can evade justice in the long-term. The protracted legal arguments we have seen at all the tribunals would not be tolerated if less privileged members of society were at the centre of them.

On a broader level, this lack of transparency and inaction by the Government on many serious issues was tolerated by voters in the past when everything was going well. However, now that things are going badly, not only for the Government but also for the people as a whole, we are getting more angry with what is happening. We do not realise we are being hoodwinked, albeit in a much more sophisticated manner by the golden circle of politicians and developers who spawned this era of tribunals.

I hope all this discussion about Mr. Justice Flood and the long-term implications of tribunals will change the focus and that we will really try to root out corruption from Irish political life. I am not talking about small issues but big ones that are making hundreds of thousands of euro for individuals.

Mr. Boyle

We wish Mr. Justice Flood well in his retirement and thank him for the work he has done on our behalf. His replacement as chairperson of the tribunal by Judge Mahon and as a member of the tribunal by Judge Keys will not result in a division in this House. While there is unanimity in proceeding with the work of the tribunal, there is disagreement as to how effectively the tribunal has been allowed to do that work.

The Government has cited in various contributions the political etiquette that has accompanied the letters surrounding the resignation. However, it is known that disquiet and frustration have been expressed by members of the tribunal team regarding not getting the resources when they were required and not being allowed to do as much work as they intended to do by a certain timeframe. As we are now moving into a new timeframe, I hope we can help the tribunal expedite its work and answer the many unanswered questions on this subject.

In stressing the limited nature of the motion the amendment by the Labour Party that was ruled out of order was paralleled by an amendment the Green Party sought to table which asked that all the information already been judged by preliminary investigation continue to be heard by a full public inquiry. Even though the Taoiseach has given a commitment on certain modules, particularly the Gilmartin module, there are others that may be heard in private session from which the public may not get an opportunity to get the full facts.

As we have believed since the first debate in 1997, proceedings of the tribunal should be recorded and broadcast. Laudable as the recreations by Joe Taylor and Malcolm Douglas have been, members of the public should have the opportunity to see the physical reaction and discomfort of those lying about their activities. This has been a significant factor in tribunals in other jurisdictions. It is something that we should be encouraging the tribunal to do if it is in our power. Through the mechanism of the Tribunals of Inquiry (Evidence) Acts, the Attorney General can approach the tribunal and ask whether it is prepared to approach the Oireachtas for certain changes to be made. That is an avenue we can go down.

The culture that underwrites the potential for corruption in political life unfortunately still exists. It is because bad decisions are made on foot of bad and even corrupt decisions made in the past. The decision made today by the Minister for the Environment, Heritage and Local Government insisting that the road goes through Carrickmines Castle is typical of that type of bad decision making. This is a site that has been questionably, and possibly illegally and corruptly, zoned. On the last day of this Dáil session, we are looking at a decision made on behalf of the Government on the back of a local authority decision that cannot have been made safely.

Mr. Cullen

I could have waited until next week.

Mr. Boyle

We will not be here next week.

Mr. Cullen

I could have but I have given every one a say today.

An Leas-Cheann Comhairle

I call on the Minister for the Environment, Heritage and Local Government to conclude.

Minister for the Environment, Heritage and Local Government (Mr. Cullen)

I thank all Members who have spoken on this important debate. I am also grateful for the support for the resolution that is apparent in the House. It is important that we make clear that none of the terms of reference to the Tribunal of Inquiry into Certain Planning Matters and Payments is being changed. It is important that this is stated, as there is some impression among Members that this is not the case.

We are here on foot of this resolution to appoint Judge Alan Mahon as chairperson of the tribunal and Judge Gerald Keys as a member of the tribunal at their request. The purpose of doing this is to ensure that the tribunal can get back to public hearings immediately. We should be clear in our minds that it is only last Friday that Mr. Justice Flood brought absolute clarity to his position. In six days, the Government, as the Members of the Oireachtas would have wished, came to the House with this resolution to ensure that the tribunal can continue with its hearings and get them into the public domain. We all subscribe to that and this was the basis of this debate.

I wish to read into the Official Report, the response to question (b) of my letter to the tribunal. I asked about the likely duration, up to completion, of all matters arising within the terms of reference (as amended) of the tribunal. The answer stated:

As set out above, the Tribunal anticipates that public hearings relating to the current modules will be completed by the end of 2006. The duration of the Tribunal beyond 2006 will depend upon the number of issues, if any, which are 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 twelve 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 you, and the Oireachtas, of the likely duration of the public hearings relating to any such issue.

It is quite clear—

Mr. Rabbitte

Does the Minister know what "current modules" means?

Mr. Cullen

It is quite clear that the A5 module, which is the issue raised by Deputies Kenny and Rabbitte, and is well known in the public domain, forms part of the current modules. We would, like all Members of the House, expect that the tribunal will continue in the full public domain.

Mr. Allen

Would that include the tax designations?

Mr. Cullen

As has been stated in the reply from the tribunal, it intends to get back to the Oireachtas within 12 months to inform us of the position on many other modules that are under consideration.

Mr. Rabbitte

What does "current" mean? Does it mean Gilmartin and Dunlop? Does it mean urban designation?

Mr. Allen

What about Athlone?

Mr. Cullen

Yes, as I understand it. It is the wish of the Government that all of those matters be heard in public. It is without question the wish of the Government that these matters are dealt with in a full, open, accountable transparent way. That has been the approach of this Government in working with the Oireachtas. The Government accepts that it is the primacy of the Oireachtas that set up these tribunals and I respect that.

With regard to issue of the letters raised by Deputy Gilmore, the letter sent to me dated 18 June was the letter of 16 June. Some have asked why I did not immediately come to the Oireachtas when it was sent to me. I did not receive the letter on 18 June, I received it late on 19 June. I believed the letter was of importance and significance to both the tribunal and the Houses of the Oireachtas. The proper and most prudent course of action was to bring it to the Government at the first opportunity. That was at the Government meeting of 24 June. The only intervening period in that timeframe was the weekend. I believe I would have done a disservice to the tribunal and the Oireachtas if I had acted in a different way. I believe it was the correct and most prudent way to act.

I was present at that meeting when the matter was discussed. It was only at that point that all of the legal issues and the many questions were asked with regard to the legal difficulties that could or may arise on foot of this letter. That was the first lengthy discussion in which the Taoiseach and members of the Government were involved directly. On conclusion of that meeting, the Taoiseach immediately came to Dáil Éireann to inform Members with regard to the contents of the letter. I, in parallel with this, forwarded those letters to the Clerks of the Dáil and the Seanad. The leaders of Fine Gael and the Labour Party responded, acknowledging there were legal complexities in those issues that have to be teased out. That brings clarity to that matter.

A number of Members asked why we did not have the legislation dealing with the costs before the House this week. As Members know it raises a number of questions. The matter requires reflection, as was agreed by Deputies Kenny and Rabbitte, in my understanding. The few months that are now available will be used to reflect upon that and to frame that legislation. The legislation must ensure the fullest means by which the tribunal can continue and Judge Mahon can hear those cost hearings without any impediments. We all wish for that. To have rushed that legislation in the last few days would have been the wrong approach. We were right to do that.

I want to emphasise again that it was only last Friday that the final certainty was brought to this matter by Mr. Justice Flood. Within six days of that, we came before the House with a resolution that confirms the new chairman and member of the tribunal. The purpose of that is to ensure that the tribunal can go into public hearings immediately. I agree with Deputy Rabbitte, as does the Taoiseach, that it is a matter for the judges to hear many issues in parallel. This could expedite some of the matters. We will support that but it is a matter for the tribunal.

Question put and agreed to.