Farewell to Tribunals

The publication of the Mahon report in March ended the era of tribunals, writes Michael Clifford

Farewell to Tribunals

THE year to which we now bid farewell takes with it an era that few will be sad to see the back of. Last March the publication of the final report of the planning tribunal brought the curtain down on an era of expensive, meandering public inquiries.

The planning tribunal — which came to be known as Mahon in the last 10 of its 15 years — was the mother of all tribunals. It was established in 1997 under the chair of Judge Feargus Flood on foot of an allegation of corruption against a government minister, Ray Burke.

The report published on Mar 22 last detailed a web of corruption in planning in Dublin City in the late 1980s and early 1990s. It had started out focused on Burke, but from its main stream of inquiry various tributaries began to flow.

One led all the way to former taoiseach Bertie Ahern. The most successful politician — in electoral terms — since de Valera was forced to resign office over his dealings with the inquiry. It wasn’t the first time that a public inquiry had a major impact on a serving government.

Mahon issued damning findings against Ahern, saying it didn’t accept as “truthful” his explanations of how he had come into €165,000.

Ahern rejected the findings.

“I am disappointed that the tribunal has said that I failed to give a truthful account,” he stated.

“That statement is unfair and inaccurate having regard to the evidence. It is one that I cannot and I will never accept and I will continue to examine ways in which to vindicate my name. I was honest with the tribunal and I gave it truthful evidence and I reject completely any suggestion that I did otherwise.”

Few believed him and his party wasn’t prepared to defend him. He resigned from Fianna Fáil days before he was due to be thrown out. Allied to the culpability he is perceived to have for running the economy onto the rocks, Mahon left his reputation in complete tatters.

Other, minor figures, were also singled out for mention in the report, and the whole planning process came in for severe criticism. But, after 15 years and an estimated €200m, many wonder whether it was all worth it, and what really has changed.

The Mahon Tribunal wasn’t the only mammoth inquiry of the era. Moriarty was set up within months of the planning tribunal. It was effectively the Son of McCracken, the model inquiry that was set up to investigate the finances of Charlie Haughey and Michael Lowry.

McCracken lasted all of eight months, but the chairman reported that some deeper probing would be required. Step forward for duty Judge Michael Moriarty, a rising star of the High Court, who had no idea what he was letting himself in for.

And so it was that Flood and Moriarty walked hand in hand through the years of the first, genuine boom of the late 1990s and early Noughties, on through the bubble years, and finally all the way into the age of austerity. Both sat in Dublin Castle. Outside the country went through transformative change, while within the respective inquiries, episodes going back over two decades were raked over in minute detail by lawyers being paid premiership wages.

For the handful of lawyers who became millionaires for their efforts in the castle, it was a heady time. Opinions differ on how the tribunal era served politicians, both those active, and those who had left the stage. But one thing historians are bound to focus on was whether it was all worth it for the State, its citizens, and the future.

Looking back, it now seems that there was a public inquiry for everybody in the audience over the past 20 years. The whole culture of long-running tribunals was set by the Beef Tribunal, which was the first to examine connections between business and politics. Its main focus was how the State underwrote the export of beef, and why the taxpayer ended up footing the bill when things went pear shaped in the market.

The tribunal effectively brought down the Fianna Fáil/Progressive Democrats coalition in 1992 over conflicting evidence given by Albert Reynolds and Des O’Malley. Two years later, the Fianna Fáil/Labour government collapsed over a paedophile priest, but many traced the declining trust in the relationship between Reynolds and Dick Spring back to the publication of the tribunal report the previous year.

Little of substance emerged from it, and nobody apart from a few minor functionaries in the Larry Goodman empire was discommoded. It turned out that, to a large extent, nobody was responsible for anything that happened. The chair of the inquiry, Judge Liam Hamilton, was promoted to chief justice.

The Beef Tribunal cost about €35m, a ludicrous price at the time, and one many believed would never be repeated again. But the tribunal gravy train was only gathering steam.

Two other inquiries which were, by any stretch, necessary were those known as Finlay and Lindsey. Both were connected to the contamination of the blood of 1,600 mainly women who had received transfusions in the Irish health system. Between them, the two public inquiries cost over €70m, but few could argue that this work had to be done in public, such was the scandal attached to it.

McCracken cracked open the whole raft of innuendo and rumours that surrounded corruption in politics. By tribunal standards, it was a steal at a cost of £6.6m.

Despite the costly meanderings of Flood (later Mahon), the appetite for public inquiries didn’t wane during the last decade. The Morris Tribunal was set up following allegations about Garda corruption in Donegal, and the Barr Tribunal was established to investigate the shooting dead of John Carthy after a siege in Abbylara, Co Longford.

Barr had to be established after the Supreme Court ruled that an Oireachtas inquiry into the incident couldn’t make adverse findings against individual gardaí.

The only tribunal to still be in train is that chaired by Judge Peter Smithwick, which has sought an extension to look into allegations of Garda collusion with IRA elements in relation to the murder of two RUC officers.

Has it all been worth it? There is no doubt that the workings of the various tribunals have impacted on public life and how state, government, and business conducts themselves. How much would we have known, for instance, about the wholly incompetent manner in which state agencies poisoned citizens’ blood if the matter hadn’t been aired publicly?

However, it’s also the case that successive governments have approached recommendations from inquiries in an à la carte fashion. In particular, the interface of business and politics is not yet as transparent as a number of inquires — including Mahon and Moriarty — recomm-ended.

The tribunal as an instrument has been much derided, and justifiably so in light of how some of them have dragged out. But it should be remembered that the tribunal was largely sought only when it appeared necessary to maintain public confidence. In the planning tribunal, for instance, the rumours about corruption had persisted for decades. The allegations around Ray Burke were not new. There had been previous Garda investigations into Burke and the planning process. Nothing short of a public inquiry would have sufficed. If we knew then what we know now, it could have been structured in a different way, particularly in relation to legal fees. But anything done behind closed doors would have been laughed out of town.

Not that tribunals were all bad news for politicians. One theory often aired during the tribunal era was that setting up these public inquiries suited serving politicians down to the ground. It parked the issue, shoving it into a sidling, while government got on with governing, instead of having to answer for their conduct, or that of their party. It provided anybody caught up in an inquiry with the perfect excuse not to comment on their involvement, irrespective of any allegations that surfaced.

Times are different now in some ways. Anything involving the gardaí can now be referred to the Garda Ombudsman. In the health sphere, Hiqa has shown itself to be an able policing body. The corruption that permeated politics in the time of Haughey and Burke is no longer prevalent.

Tribunals have also fallen victim to legislation brought in by former justice minister Michael McDowell in 2005.

The commission of inquiry model allows a senior legal person or judge to conduct an inquiry behind closed doors. This removes the major costs, both in time and money, inherent in a public inquiry, but the inquiry retains most of the powers of a tribunal. The model also allows for evidence to be taken in public if deemed necessary.

This model has been used extensively in latter years, particularly in relation to investigations of clerical sex abuse, and is regarded as having been highly successful.

Crucially, public opinion, on the whole, appears to have little problem with something that is not hammered out in public in its entirety.

There will still be times when a tribunal is required, but we have moved from a position in which it was the first thing to reach for. With the publication of Mahon in March, the era of the expensive public inquiry came to an end.

So farewell the tribunal era. You cost an arm and a leg, something the State in its crippled economic condition could do without.

You provided endless realms of news for those of us in the news business. And you weren’t beyond the odd light moment, when sublime and ridiculous collided as tales of madness for days of yore poured out.

We’ll not see your likes again. Thankfully.

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