Why no one’s responsible for anything

I used to work in a bunker. At least, that’s how it felt.

Why no one’s responsible for anything

The place was a large, windowless, cavernous room, through which dark figures moved back and forth. The job was grim; endless hours bent over a table, in constant motion, recording what was unfolding, not unlike a miner who has to keep up with a seam coughing out coal.

Then, at the end of the day, wondering what it had all been about. That’s how I remember covering the Planning (aka Mahon) Tribunal.

It was held in the printworks building of Dublin Castle. Carpets were installed to remove the bare look, but the bare look stuck around.

The fare was mind-numbingly boring. Now and again, it was punctured with comic relief, which usually involved a witness stooping to ridicule to keep the truth under wraps, or the exposure of a silly vanity that illustrated these people’s self-regard.

There were moments of great relief, when the boredom evaporated as a few nuggets of gold leapt from the mouths of lawyer, judge or witness.

Another window into the past suddenly opening up. Another example of crooked activity exposed. More lies trampled.

The truth emerging, bleary-eyed and battered, but still intact, despite the years of neglect. Those days came back to me just before Christmas, when the Supreme Court made a ruling that, to some extent, negated much of the work performed over those 14, wildly expensive, years.

The court ruled that adverse findings, made against George Redmond by the tribunal, be erased, and his costs be paid by the State. (George’s life and times were dealt with in this column a fortnight ago)

. It is expected that others who had findings and costs made against them during the inquiry will follow in George’s footsteps.

On Thursday last, judge Alan Mahon issued a rare public statement, saying that the perceived extra costs had been factored into an estimated bill of €159m for the inquiry. This is a major issue, and has received little coverage.

The ruling in Redmond’s case was based on a previous ruling, in a case taken by JMSE, a firm whose principles were found to have paid a bribe of £30,000 to former justice minister, Ray Burke, in 1989.

JMSE had challenged the tribunal’s decision that it must pay its own costs, which ran into millions.

In the legal challenge, JMSE showed that its counsel had been deprived of access to private statements made to tribunal lawyers by the main whistleblower in planning corruption, James Gogarty.

The court found that, as a result, JMSE was denied the chance to test Gogarty’s credibility, and therefore put at a disadvantage.

The building firm will now have costs paid by the State. Ultimately, many of those found to be corrupt may have the findings overturned.

Equally, their costs may now be paid by the State. All of this because of what may have been a simple error by tribunal lawyers in failing to furnish all parties fully with interview notes and recordings.

Once again, in this country, nobody is responsible for anything.

The tribunal established that there was extensive corruption in the planning process for decades.

The only criminal prosecution, taken against Redmond, was ultimately unsuccessful. Charges were laid against a number of former councillors, but had to be abandoned because of health issues with the main witness, Frank Dunlop.

Now, the findings of corruption against Redmond have been set aside, and others may attain a similar result. That corruption occurred has been established.

But nobody will be deemed responsible for any of it. What is it about this country and inquiries? The other long-running tribunal, Moriarty, ran into its own problems.

Questions arise as to how that inquiry could, in a draft report, make serious adverse findings against a group of civil servants, and then, with little apparent reason, reverse these findings in its final report.

Oireachtas inquiries have had other problems. The inquiry into the fatal shooting of John Carthy, in Abbeylara, had to be abandoned.

Angela Kerins is currently taking a legal action against the Public Accounts Committee, on the basis of how it conducted itself in its inquiry into the Rehab organisation, and her role in it.

Alan Shatter is challenging the findings of the Guerin inquiry into garda malpractice, as they apply to him. Both Shatter and Kerins could have reasonable expectation of a positive result, based on other cases.

Ivor Callely successfully challenged a Seanad committee that had made findings against him in relation to claiming expenses.

Last July, Callely was sentenced to five months in prison, after pleading guilty to other false-expense claims. Time and again, even when inquiries uncover serious wrongdoing, nobody can be deemed responsible for anything.

Look at the banking inquiry currently underway. Constrained by the Supreme Court judgement on Abbeylara — and the refusal of the electorate to grant extra powers to Oireachtas committees — the inquiry can’t find anybody responsible for anything.

Back in the Mahon Tribunal bunker, some context should be provided to explain how things may have gone wrong. In the first instance, the powers granted to tribunals are disproportionately huge in the legal system.

The inquiry has powers of discovery and compellability similar, and sometimes greater, than those that apply in the court system. The tribunal model was designed to apply to a short, sharp inquiry, and the extra powers granted accordingly.

Nobody ever envisioned Mahon (which was son of Flood) or Moriarty dragging on for years. In any system where disproportionate power is retained over an extended length of time, it is inevitable that it will be used in a manner not intended.

The capacity for lawyers, or even judges, to lose the run of themselves in this situation is enormous.

Then, there was the bunker. From their early days in 1997, both inquiries were under sustained attack from vested interests.

There were concerted attempts in the courts, and particularly in the media, to ensure that the truth remained buried. While that was unfolding in public, both inquiries were coming across jaw-dropping material behind closed doors, which suggested plenty was wrong in the State of Ireland.

All of which led to what this observer saw as a bunker mentality, certainly in the case of the planning tribunal. Thus, under attack in the bunker, while retaining huge powers, there was enormous potential for something to go wrong, for which remedy would ultimately be sought in the highest court in the land.

Still, that doesn’t illuminate the bigger picture.

Why, in this country, is it so difficult to have anybody deemed responsible for anything beyond the door of an expensive and cumbersome court system?

That corruption occurred has been established. But nobody’s responsible

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Wednesday, November 25, 2020

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