The Labour Party will not oppose the Bill either. It is a fairly straightforward and short Bill which has arisen from the resignation of Mr. Justice Flood who dealt with the planning tribunal. If he had been treated in a proper fashion, and if his concerns had been given due consideration, the Bill before us may not have been required.
When Mr. Justice Flood requested extra resources and that other judges be appointed, a deaf ear was turned towards him and no response came from Government. In tendering his resignation he offered to stay on to deal with the matter of costs which is a legally tricky aspect at the heart of this legislation. If Mr. Justice Flood had been requested to remain in place this legislation would not have been required. However, the Government did not make this request and, in fact, created a limbo situation at that time through Government spin.
The Taoiseach misled the House in the manner in which he presented the case. He gave the impression that he had just heard about it when, in fact, he had the letter from Mr. Justice Flood for over a month before he announced it in the House. He informed the House that he had not properly considered the issues because he had just received the note, this, however, was not the case, as he already knew all about it. The Minister for the Environment, Heritage and Local Government, Deputy Cullen, declined to consider the offer of Mr. Justice Flood to stay on.
The manner in which this has taken place is most strange. It is too much of a coincidence when we observe that Ms Justice Laffoy also expressed severe reservations about the way in which the Government handled the problems which she was facing and that she also received no co-operation. She went as far as saying that there was deliberate obstruction.
The Taoiseach constantly informs us that he was the man who began the process of a number of these inquiries. However, the Government appears to be extremely reluctant to co-operate enthusiastically with any of the inquiries. It appears to be more intent on putting obstacles in the way of inquiries conducting their business and putting out a spin to the effect that they will continue for many years. The Taoiseach used a figure of 15 years at one time in regard to the Flood tribunal and then a figure of 30 years.
Any citizen listening to that spin would remark on the terrible waste of taxpayers' money. The beef tribunal concluded with nobody being held accountable; nobody went to prison. This led to frustration and to people calling for an end to the tribunal system. However, the tribunals, are doing much good work. The context in which the tribunals were established reflected a lack of accountability and transparency in the conduct of public administration. The point should be reached where tribunals will no longer be necessary. Although they were occasionally a thing of the past, the plethora of tribunals at present reflect a diminution in public standards and a lack of accountability by the organs and institutions of State. We have all failed in that respect. It behoves us to ensure that everybody gets their house in order and that we, as legislators, construct a proper framework to govern the way in which we do our business. This will assist the various servants of the State in how they conduct their business and ensure the private sector is sufficiently monitored and scrutinised that it does not become a law unto itself or operate in an illegal or rogue fashion.
We have a responsibility to ensure that we put in place structures and amendments to allow the Mahon tribunal, formerly the Flood tribunal, to conduct its work properly and that it will not be delayed again by a legal challenge. I hope that what we put in place regarding the manner in which costs are prescribed and adjudicated will be sufficient. I think it will be, even though it means the new chairman will operate in a retrospective fashion.
It is important that this matter be rectified by means of a statutory amendment. It is also important that the chairman is provided with a backup allowing him to seek direction from the High Court on the performance and functions of the tribunal, including the matter of costs. I hope both of these measures will have the desired effect in allowing the allocation and determination of costs.
Large sums of money have already been mentioned. The former Minister, Mr. Burke, is allegedly seeking in the region of €10 million to €12 million in legal costs. He wants the taxpayer to foot his bill when there are serious findings in regard to his activities. The matter is an extremely delicate one and it must be got right, otherwise the taxpayer will foot the bill in all of these cases.
The third matter dealt with in the Bill is the question of the tribunal sitting in separate divisions. I welcome the appointment of the two other judges, Judge Mary Faherty and Judge Gerald Keys, which will make the Mahon tribunal a three-person one. I hope this will expedite the business of the tribunal so modules do not have to be dealt with by a single member or the tribunal as a whole, but that its business can be dealt with in a modular fashion. We are forever talking about the question of costs and the timescale that will be required.
A motion was debated in the House in July 2003 on the Tribunal of Inquiry into Certain Planning Matters and Payments. This sought approval for Judge Mahon, Judge Faherty and Judge Keys to be appointed as new members of the tribunal. There had been a number of exchanges on the issue of sitting in parallel in separate divisions that would be established to expedite the work of the tribunal.
The leader of the Labour Party wrote to the Taoiseach on the possibility of tribunal members sitting in parallel. It reads:
I write in reference to the exchanges between us during the Dáil debate last Thursday on the Planning Tribunal. I had expressed regret at the ruling out of order of my proposal seeking to enable the Planning Tribunal members to sit in parallel, where feasible and appropriate. [While it could have been done at that time, the Government obviously knew best.]
The Minister, Deputy Cullen, intervened to say: "That is a matter for the judges. It is not for us to dictate how they order their business." We now know it was not. And you [the Taoiseach] said:-
"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."
If that is the case, why is this Bill being introduced? I have quoted what the Taoiseach said when the appointment of the Mahon tribunal members was being dealt with.
The leader of the Labour Party replied:
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.
Even though there were three judges, there was no provision to expedite the work.
The letter continues with a quote from the Minister of State, Deputy Brian Lenihan, who intervened at a later stage in the proceedings:
"... 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."
The purpose of this letter is to seek explicit clarification in relation to the issue, which is not I believe contentious, politically or otherwise.
Are you advised that it is possible under the present legislation and terms of reference for the tribunal to sub-divide, so that individual members could be allocated separate modules to be inquired into and reported upon by them sitting alone? Could there be two or more divisions of the tribunal sitting, in relation to separate matters, at the same time?
Clearly, my own belief that such a procedure is not at present permissible is not shared by you or your colleagues in Government. But, on checking the record of the second stage debate on the Tribunals of Inquiry (Evidence) (Amendment) Bill, 2002, it seems to me that the then Minister for Justice, John O'Donoghue, interpreted his legislation in much the same way I do. Has there been a change in the advice offered between then and yesterday?
Section 4 of the 2002 Act amended s. 2 of the 1979 Act and inserted a provision to the effect that, subject to rules governing the awarding of costs, "a decision or determination of a tribunal consisting of more than one member may be that of a majority of its members and, in the case of an equal division among its members as to the decision or determination to be made, the decision or determination shall be that of the chairperson of the tribunal".
The Minister said (22nd March, 2002, col. 5): -
"The phrase 'may be that of a majority of its members' rather than 'shall be' is to take account of the possibility that decisions and determinations may be unanimous".
Later (at col. 8), he repeats that: -
"I have already outlined, section 4 provides that a decision of a tribunal consisting of more than one member is to be that of a majority".
And at cols. 6 and 7 the Minister considered a situation where -
"the original tribunal member has left the tribunal and that person was the sole member when particular evidence was heard, while the additional member(s) were not members or reserve members at that time. The tribunal might, in those circumstances, conclude that it would unduly prejudice a person's legal rights were it to make findings on evidence it did not hear and to which it has access, perhaps, only in the form of transcripts... "
Two conclusions seem apparent from the framework of that Act and the Minister's common sense explanation of its workings. First the decision of a tribunal is that of the majority of its members. Second, a member should not contribute to decision-making on an issue in relation to which that member has not heard the evidence. That being so, it seems to me to follow that it is not at present possible for a single member sitting alone to receive the evidence and decide the issues arising in respect of a discrete module. The member cannot decide it alone because that member is not a majority of the membership of the tribunal. Yet the other members cannot contribute to the decision-making because they have not heard the relevant evidence.
You will appreciate that members of the Dáil and Seanad have a legitimate interest in arriving at a clear, common and consistent view on this question. We are all of us concerned to ensure the efficient and economical workings of the tribunal and this issue is relevant in deciding whether there is any need for either legislative change or future amendment to the governing terms of reference.
Thank you for any light you can shed on this matter.
Pat Rabbitte T.D.
Leader of the Labour Party
This letter was dispatched to the Taoiseach on 10 July 2003. It sought guidance in a matter on which there was a difference of opinion in the Dáil some days earlier. The Taoiseach replied by letter on 21 July 2003 stating:
Dear Deputy Rabbitte,
Thank you for your letter of 10 July 2003.
I am glad that you recognise that the objective of ensuring that members of the Tribunal may sit and hear different modules concurrently is one that is shared by all sides of the House. Our common desire to achieve an efficient and working inquiry system — which reduces the exposure of the State to legal costs — is something that should inspire political cooperation, in the Dáil and Seanad.
The public are, rightly, concerned at the level of costs incurred in connection with various tribunals. Proposals to reduce the costs of conducting inquiries are contained in the Commissions of Investigation Bill 2003. [I wish we had that Bill before us now]. However, that Bill does not, of itself, address the problems of costs and of duration that affect the operations of current tribunals. Thus further legislative changes require consideration.
It is correct that the Tribunals of Inquiry (Evidence) (Amendment) Act, 2002 contains provisions dealing with tribunals of more than one member. As you know this effect of the legislation of 2002 was set out by the then Minister for Justice, Mr John O'Donoghue TD in his speech in the Dáil at the Second Stage of the debate on what was then the Tribunals of Inquiry (Evidence) (Amendment) Bill 2002. But there is other legislation that also needs to be considered in relation to the operations of tribunals. My advice is that our existing legislative code does not prevent parallel sittings.
As you are aware, in light of the recent resignation of Mr Justice Flood, it will be necessary to bring new legislation before the Dáil and Seanad at the earliest possible date in the coming session. This legislation will facilitate the Tribunal in making orders as to costs, arising from the hearings which give rise to the Tribunal's second interim report, in the absence of the former Chairman who alone had presided over those hearings.
The Oireachtas will undoubtedly wish to avail of this opportunity to make additional legislative changes which might, for example, simplify existing statutory procedures including the conferring of an express power on a multi-member tribunal to sit in divisions of the same Tribunal. [On the one hand, it is supposed to be there, but on the other, we need legislative provision to do it]. As I made clear in the Dáil last month, I and my colleagues in Government will carefully consider these issues in their entirety in order to produce an effective and legally sustainable set of proposals.
I look forward to your cooperation in respect of the forthcoming changes to our tribunals legislation. I will revert to you when the Government has completed its consideration of the possible options for further amendments to the tribunals legislation.
Bertie Ahern T.D.
That is the type of confusion that exists and unwillingness to come to grips with the issue and deal with it properly. The original decision was not to accept Mr. Justice Flood's offer to deal with costs and stay on, though it would have avoided most of that. However, the simple amendment that is now being put in statutory form to allow the tribunal to examine modules separately was sought for a considerable time. One of the things that Mr. Justice Flood wanted was extra judges and resources so that he could conduct his business properly. Ms Justice Laffoy also wanted extra resources, for the same reason.
I raise that now because, while we support the legislation, we do not want to give the Minister the impression that we feel that everything is hunky-dory in the tribunals area, since it is not. We would not be in this situation at all today if proper responses had come from the Government. If the Government were doing its job, properly resourcing the tribunals and listening to their chairpersons, who have been writing letter after letter to it protesting at the inadequacies of its response regarding documents and so on, this sort of ad hoc plugging of the gaps when something could have been dealt with generously and properly to ensure that the work of the tribunals is expedited would not have happened.
When we consider Mr. Justice Flood's second interim report, produced in 2002, we see the enormous amount of work that he has done. There was a range of activities which no one could have envisaged might come within his ambit. Who would have thought that? When he began the work of looking into Mr. Burke's activities, which obliged him, as he says in his preface, to investigate substantial payments made to Mr. Burke in the course of his long political career, the terms of reference looked good. However, when the ripples went out and the pathways were scrutinised, it was discovered that Mr. Burke had been involved in an enormous plethora of activities with several question marks over virtually all activities where money was involved. That meant that Mr. Justice Flood had to continue his work and expand his area of activity to include land rezoning, radio broadcasting, offshore trusts and corporations. We cannot therefore blame Mr. Justice Flood for the length of time that it has taken the tribunal. It is the subject matter that has required so much time and such an extensive trawl. However, despite all that having taken place, Mr. Justice Flood states in his preface:
All citizens have a duty to co-operate and assist a Tribunal and to tell the truth when summoned to appear at a public hearing. It is with considerable regret that I have concluded that I must report, as one of my findings, that certain parties who appeared before me chose not to co-operate with the Tribunal in its task and, further, having been duly sworn did not tell the truth.
That is a very serious allegation to have to make. Mr. Justice Flood goes on to say:
The extent to which their actions may have involved them in breaches of the criminal law is a matter upon which the Director of Public Prosecutions has absolute and exclusive jurisdiction.
We would have expected that every citizen of this country would co-operate. He goes on to point out that he is mindful of the significant costs incurred in conducting the inquiry to date. He says that he has endeavoured to conduct the inquiry in as economical a fashion as possible, having regard to the rights of the persons appearing before it. He also points out that the Revenue Commissioners and the Criminal Assets Bureau have informed him that "to date, in excess of €34,500,000 has been paid to these bodies in connection with inquiries into Revenue compliance issues arising directly or indirectly from this Tribunal". He says that he believes that to be a significant consequence of the work of the tribunal to date. The impression has been given by the Government's spin doctors that the tribunal is a total waste of taxpayers' money. However, a great deal more money has been recovered from sources which received corrupt payments or had offshore accounts as a result of Criminal Assets Bureau and Revenue Commissioners investigations.
The enormous abuse in the planning arena, bribery and corruption, and the unholy trinity of politicians, public servants and developers working hand in hand blighted this city, with ugly developments on greenfield sites turning them into concrete jungles. We really had a party of cowboys riding roughshod over planning. Rezonings should not have taken place, and the brown paper envelope became the motto of the developers in those years. Now the city of Dublin sprawls as far as Kildare and Meath. I noticed that yesterday's big story concerned commuters having to travel up to Cavan to get decent affordable housing. At the moment we have the fiasco over Carrickmines, the Southern Cross and the Jackson Way consortium. Underhand, disreputable, abusive activities took place to allow people motivated only by greed to redesign major sections of this city and rezone it according to the wishes of the developers. That is what this is about, and it is important that it all comes into the public arena. It is very important that we get matters right regarding costs and that there is no opportunity to contest matters in the courts. We must get how the tribunal conducts its business right so that it can do it more expeditiously by having simultaneous parallel modules.
One issue that has never been addressed, and is not being addressed in this Bill or the Minister's proposals for the Commission of Investigations Bill, is costs. It is no good saying that it is being dealt with. Almost all the costs come from the legal profession. Tribunals would cost extraordinarily little if there were not enormous payments of fees to those members of the legal profession participating. The Minister's contribution to this matter, when he was Attorney General, was to increase those fees by €800 a day. That is the man who talks to us about doing something regarding fees. He tells us that the situation is not good enough. He had the chance to do something about it by prescribing terms and conditions and putting in place a package remunerated by a scale of fees. Did he do anything of that nature? No, he merely increased the fees and allowed those members of the legal profession working in the tribunal to become millionaires. This matter must be addressed and the first thrust of legislation should be to ensure that taxpayers receive value for money, not from the tribunal, as that is already the case, but in respect of payment to the legal profession for the work it does.
The future of tribunals is another important issue. The tribunal of inquiry is the Rolls Royce of inquiries and, as such, it will always be an expensive item. In many cases, however, this type of inquiry is not necessary. To some degree, the Minister, in his Commissions of Investigation Bill, outlines proposals, with which I largely agree, to institute measures, procedures and mechanisms which would result in a gradual approach being taken and the establishment of a full-blown tribunal of inquiry as a last resort.
While the proposal to have different types of investigation is welcome, the Minister omitted the most important area. Essentially, Members of the Houses are elected to make legislation, govern and ensure that the public administration is scrutinised and nobody is above the law. Although the Oireachtas has a wide-ranging role and broad responsibility, it seems to be regarded as a talking shop which does not exercise the range of powers it should. In other jurisdictions, notably the United States, the committee system has assumed a major role and has considerable powers to deal with matters of this nature, ranging from powers of scrutiny and monitoring, to the power to call to account public servants and those involved in the private sector. This House embarked on that process but was suddenly short-circuited and stymied by the Abbeylara decision.
The Abbeylara inquiry was an anomaly which did not fall within the normal range of investigations a committee of the House could conduct. Essentially, the case involved a manslaughter offence. The manner in which the House dealt with it — through a committee — was not appropriate. The fact that the House ran into a brick wall in that inquiry is not a reason for suddenly stopping and deciding it no longer has any role or powers in this area.
We should make all the constitutional or legal changes necessary to enable the committee or sub-committee system — I am currently engaged in the Barron inquiry being conducted by a sub-committee of the Committee on Justice, Equality, Defence and Women's Rights — to conduct investigations. This could involve the appointment of a parliamentary investigator to perform the role carried out by the Comptroller and Auditor General in the DIRT tax scandal, after which a relevant sub-committee or committee could conduct an investigation. The considerable potential for the committee system to deal with matters requiring investigation should be explored and I hope the Minister takes this on board in the commission of inquiry Bill.