Flood Tribunal Terms of Reference: Motion.

Thursday, 2 July 1998

Seanad Éireann Debate
Vol. 156 No. 9

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Mr. O'Donovan: Information on Dennis O'Donovan Zoom on Dennis O'Donovan I move:

That Seanad Éireann resolves that the terms of reference contained in the resolution passed by Dáil Éireann on the 7th of October, 1997 and by Seanad Éireann on the 8th of October, 1997 under the Tribunals of Inquiry (Evidence) Acts, 1921 and 1979 be amended as follows:—

1. By the deletion from paragraph A.5 of the words “committed on or after the 20th June, 1985.”

[722] 2. By the addition of the following paragraphs after paragraph D:—

“E. The Tribunal shall, in addition to the matters referred to in paragraphs A(1) to A(5) hereof, inquire urgently into and report to the Clerk of the Dáil and make such findings and recommendations as it sees fit, in relation to the following definite matters of urgent public importance:—

1. Whether any substantial payments were made or benefits provided, directly or indirectly, to Mr. Raphael Burke which may, in the opinion of the Sole Member of the Tribunal, amount to corruption or involve attempts to influence or compromise the disinterested performance of public duties or were made or provided in circumstances which may give rise to a reasonable inference that the motive for making or receiving such payments was improperly connected with any public office or position held by Mr. Raphael Burke, whether as Minister, Minister of State or elected representative;

2. Whether, in return for or in connection with such payments or benefits, Mr. Raphael Burke did any act or made any decision while holding any such public office or position which was intended to confer any benefit on any person or entity making a payment or provided a benefit referred to in paragraph 1 above, on any other person or entity, or procured or directed any other person to do such an act or make such a decision.

And that the Tribunal be requested to conduct its Inquiries in the following manner to the extent that it may do so consistent with the provisions of the Tribunals of Inquiry (Evidence) Acts, 1921 to 1998:—

(i) To carry out such preliminary investigations in private as it thinks fit (using all the powers conferred on it under the Acts), in order to determine whether sufficient evidence exists in relation to any of the matters referred to in paragraphs E1 and E2 above to warrant proceeding to a full public inquiry in relation to such matters;

(ii) To inquire fully into all matters referred to in paragraphs E1 and E2 in relation to which such evidence may be found to exist;

(iii) In relation to any matters where the Tribunal finds that there is insufficient evidence to warrant proceeding to a full public inquiry, to report that fact to the Clerk of the Dáil and to report in such a manner as the Tribunal [723] thinks appropriate on the steps taken by the Tribunal to determine what evidence, if any, existed and the Clerk of the Dáil shall thereupon communicate the Tribunal's report in full to the Dáil;

(iv) To report on an interim basis to the Clerk of the Dáil on the following matters:—

the number of parties then represented before the Tribunal;

the progress which has been made in the hearing and the work of the Tribunal;

the likely duration (so far as that may be capable of being estimated at that time) of the Tribunal proceedings;

any other matters which the Tribunal believes should be drawn to the attention of the Clerk of the Dáil at that stage (including any matter relating to the terms of reference);

and to furnish such further interim reports as the Tribunal may consider necessary.

F. And that the Sole Member of the Tribunal should be informed that it is the desire of the House that:—

(a) the Inquiry into the matters referred to in paragraph E hereof be completed in as economical a manner as possible and at the earliest date consistent with a fair examination of the said matters, and

(b) all costs incurred by reason of the failure of individuals to co-operate fully and expeditiously with the Inquiry should, so far as is consistent with the interests of justice, be borne by those individuals.

G. And that the Clerk of the Dáil shall on receipt of any Report from the Tribunal arrange to have it laid before both Houses of the Oireachtas immediately on its receipt.”

Minister of State at the Department of the Environment and Local Government (Mr. Molloy): Information on Robert Molloy Zoom on Robert Molloy The motion amends the terms of reference of the Tribunal of Inquiry into Certain Planning Matters which was established pursuant to a motion passed by both Houses last October. A resolution in like manner was passed by Dáil Éireann yesterday with the support of all parties in that House.

There are two main objectives to the amending terms. First, the motion provides for the amendment to the original terms of reference of the tribunal sought by Mr. Justice Flood, the sole member of the planning tribunal, in his interim report [724] of 26 February 1998. Second, the remit of the tribunal is being extended to enable it to inquire into all substantial payments made or benefits provided, directly or indirectly for whatever purpose or with whatever motive, to Mr. Raphael Burke, the former Minister, Minister of State, Deputy and county councillor.

In accordance with the provisions of the Tribunals of Inquiry (Evidence) (Amendment) (No. 2) Act, 1998, Mr. Justice Flood has consented to the second amendment proposed, following consultation with the Attorney General on behalf of the Minister for the Environment and Local Government under the terms of the Act. This comprehensive amendment of the planning tribunal's terms of reference shows the commitment of the Government, and that of both parties in Government, to ensure the highest standards of behaviour are upheld in public office. The Taoiseach and the Tánaiste are agreed that the best way forward in regard to the controversy surrounding Mr. Burke is to ensure a full judicial inquiry is held to fully investigate all relevant matters.

The original terms of reference of the Flood Tribunal provided for the fullest possible investigation of the propriety, from the viewpoint of the planning system, of the payment which Mr. Burke himself acknowledged as having received from Mr. Gogarty, and indeed any other payment to him that might have been connected in any way with the operation of the planning system. When it became known that Mr. Burke had received at least one other large contribution, notwithstanding his statement in the Dáil last September, the Government determined that this and any other substantial contributions or benefits received by Mr. Burke should also be investigated to establish if there was anything untoward relating to the purpose or motives of the donor in making such a payment, or of Mr. Burke in soliciting, receiving or rewarding it.

Having considered the various options available to the Government, it became clear fairly quickly that the best course was to extend the remit of the planning tribunal as it was already examining at least one payment made to Mr. Burke. Mr. Justice Flood was agreeable to taking on this wider investigation and he was satisfied that it would not create undue problems for the work of the tribunal.

I would like to take this opportunity to formally place on the record of the Seanad the Government's thanks to Mr. Justice Flood for agreeing to widen the remit of the tribunal in the manner proposed, particularly given the already heavy work load of the tribunal and the demanding task with which it has been charged.

It is very important that neither I, in introducing the motion, nor any Member in speaking on it, should be seen in any way as pre-empting the work of the tribunal in relation to the matters in question. Therefore, while I do not intend to comment directly on the allegations which have [725] led to today's resolution, it has to be said there is general agreement among all parties that Mr. Burke's activities should be judicially investigated. One of the founding principles of my party, the Progressive Democrats, was to ensure that the integrity of the political system was upheld and to restore public confidence in the workings of our democracy. These values hold equally true today.

It is in all our interests that this tribunal should inquire thoroughly into the allegations which have been made concerning payments made to Mr. Burke. Of course, it is also important that Mr. Burke's rights to justice and a fair hearing are protected. The tribunal procedure will ensure that fair procedures are applied and the principles of natural justice upheld while ensuring the public interest is served in arriving at the truth of these matters.

Mr. Justice McCracken stated quite clearly in his report on his inquiries into the Dunnes payments that it is unacceptable for any Member of the Oireachtas to receive large personal gifts, and went on to refer to the potential for bribery and corruption. Speaking in the context of large sums of money, he also said that if politicians are to give effective service to all their constituents or to all citizens, they must not be under a financial obligation to some constituents or some citizens only. I can assure the House that both parties in the Government subscribe to these views.

It is entirely inappropriate for any politician to solicit or accept on a personal basis substantial payments or benefits. Acceptance of such payments is open to the interpretation, however ill founded this maybe in any particular case, that the donor expected or the recipient provided some benefit. This is especially true in the case of an office holder. This applies to local elected representatives, whose decisions on development plans can add considerably to the value of land, just as much as it does to Ministers or Deputies.

For these reasons, it is in the interests of all parties to ensure the tribunal clears up the circumstances of these payments. I am confident that Mr. Justice Flood and his team will leave no stone unturned in getting to the bottom of these matters. The tribunal will have the full support of the Government, and of both parties in Government, in this task.

I would like to remind the House that, as a result of consensus and co-operation among all parties, we have imposed legislative constraints which should go a long way in guarding against any repetition of the type of activities in question.

Under the Electoral Act, 1997, political parties and Members of each House of the Oireachtas and the European Parliament are, since 15 May 1997, required to furnish a donation statement each year indicating whether a donation exceeding the relevant threshold was received during the preceding year and giving particulars of any such donation. Following an election, candidates not elected at the election must furnish a [726] similar statement in relation to donations received by them at the election. The disclosure threshold for a political party is £4,000 and for individual members and candidates it is £500.

The Ethics in Public Office Act is another recent legislative measure which is doing much to promote openness and accountability in public life. It is important to say that all these advances were supported by all parties in the Oireachtas. The new procedures on political donations introduce transparency into the system of funding of political parties and candidates for election. We must be vigilant in ensuring these procedures operate effectively, both in our own interests in defending our integrity as elected representatives and in the wider public interest of safeguarding the integrity of the democratic system.

Another very significant step in ensuring high standards in public life and underpinning public confidence is the Government's commitment, already announced by the Taoiseach, to establishing a permanent commission on standards in public office. This would have a wide ranging mandate to investigate allegations of misconduct in public office and by all elected representatives. Proposals in that regard are being considered by the Government.

I expect a commission on standards in public office will be welcomed in both Houses of the Oireachtas. While the tribunals currently under way and those which have completed their work are doing and have done commendable work, it is generally agreed that setting up ad hoc tribunals is not the most effective way of dealing with allegations, which nowadays are made with increasing regularity and which can have a corrosive effect if not dealt with promptly and decisively. Apart from anything else, it places great demands on the Judiciary at a time when the court system has more than enough ordinary business to cope with. The House will have an opportunity to debate this wider issue when the Government brings forward its proposals in due course.

The extended terms of reference before the House are extremely comprehensive in relation to any payments or benefits given to Mr. Burke and show, beyond a shadow of a doubt, that the Government is determined to have all the allegations in this respect fully investigated and the truth laid bare for all to see. In the first place, the tribunal will have to establish whether any substantial payments were made or benefits provided, directly or indirectly, to Mr. Burke during his political career. If there were such payments, then it will have to decide on the motives of the benefactors — whether they were corrupt or intended to influence matters improperly.

Furthermore, it must decide if the payments were made in circumstances which may give rise to a reasonable inference that the motive for making or receiving the payments was inappropriately connected with any public office held by Mr. Burke, not only as a Minister or Minister of [727] State, but also as a Deputy or county councillor. Then, in addition to the foregoing, the tribunal must decide whether, in return for any payments, Mr. Burke did anything directly or indirectly while holding any public office which was intended to benefit the donor or indeed anybody else who may be connected in any way.

These terms of reference are quite exhaustive and will enable the tribunal investigate all relevant aspects of the payments that have been mentioned or, indeed, any other payments. At the same time, the Government is concerned that the tribunal should have terms of reference which are well focused and which ensure that the tribunal's time is not wasted investigating irrelevant matters. The tribunal, therefore, will have to form a judgment on whether any particular payment or benefit warrants investigation. I am confident this discretion will enable the tribunal to carry out its work in an efficient and effective manner.

These are the core provisions of the addition to the terms of reference of the planning tribunal. Provision is also made for the way the tribunal is to carry out its work. These provisions are similar to those which apply to the tribunal's existing mandate. The tribunal will carry out its preliminary investigations in private in order to determine whether sufficient evidence exists to warrant proceeding to a full public inquiry. Should the tribunal find that there is insufficient evidence to warrant proceeding to a full public inquiry, it must report this to the Clerk of the Dáil.

There is a requirement that the tribunal provides an interim report to the Clerk of the Dáil on the new matters referred to it, indicating in relation to them the number of parties represented, progress to date, the likely duration of the proceedings and any other matters it believes should be brought to the attention of the Clerk of the Dáil. The latter may include views on the terms of reference.

In this respect I can assure the House that if the tribunal in the course of its deliberations becomes aware of any deficiencies or unintended constraints in the terms of reference, the Government will do whatever is necessary to ensure the inquiry fully achieves its objectives. The Clerk of the Dáil is obliged on receipt of any report from the tribunal to have it laid immediately before both Houses.

The other amendment in today's motion grants in full Mr Justice Flood's request to enable him to consider matters included in the original terms of reference which had arisen prior to 20 June 1985. This date is the date of the local elections held before the making of the payment to Mr. Burke by Mr. Gogarty. It was inserted in the original terms of reference and accepted by all sides of the House as a reasonable time frame within which the tribunal should operate. It was certainly not intended to limit the effective discharge of the tribunal's work.

[728] In his interim report of 26 February, 1998, Judge Flood stated that he was advised that evidence in relation to matters which occurred prior to 20 June 1985 is admissible if and in so far as it is relevant to matters which occurred subsequent to 20 June 1985. However, he stated that the fact that such a date is specified may give rise to a legal challenge which would inevitably delay the proceedings of the tribunal in relation to such matters. Notwithstanding the advice and to avoid any such legal challenge, the tribunal sought the deletion of the words “. committed on or after the 20th June 1985 .”. The Government is happy to accede to this request.

The planning system is one of the principal means of ensuring that development takes place in an environmentally sustainable manner and is essential to our economic and social development as a society. The Government has therefore taken, and will in the future take, further steps to ensure that the integrity of the planning system is upheld. At the moment great demands are placed on the planning system to support our economic development in processing planning permission applications and in adopting development plans and zoning land for specific uses. We must be sure that all these decisions are taken on the basis of proper planning and development considerations. Planning decisions can affect the value of land and benefit land owners enormously. On the other hand, ill considered zoning can lead to increased costs to the taxpayer for infrastructural services and to poor quality living environments where people are cut off from everyday services.

The Government is concerned to increase the effectiveness of the planning system and to ensure that planning decisions are made in good time, and in this context there is a resolution before both Houses of the Oireachtas to enable the Minister to increase the number of board members of An Bord Pleanála by three so that the board can deal more effectively with the continuing strong upward trend in the volume of planning appeals. Last week I was in the Seanad for the passing of the Urban Renewal Bill, 1998, to provide for the renewal of run down urban areas by means of integrated area plans.

However, all of this work will be fatally undermined if the public does not have confidence that the planning system operates in a fair and open manner for the overall public good. I believe that the great majority of elected representatives and officials operate the planning system honestly and diligently and deserve to have confidence in the system vindicated. It is to be hoped that the thorough inquiry being carried out by Mr. Justice Flood will achieve this result.

While the amendment requested by the tribunal could have been made after the Tribunals of Inquiry (Evidence) (Amendment) Act, 1998, was enacted in May, prudence dictated that it should not be proceeded with until the means of investigating the matter of other payments to Mr. Burke which had by then come into the public domain was decided on. In the event, it was [729] clearly better to avoid making two separate resolutions amending the terms of reference. I commend the resolution and the amended terms of reference to the House.

Mr. J. Doyle: Information on Joseph Doyle Zoom on Joseph Doyle When the Minister of State introduced the resolution appointing the Flood Tribunal in this House last October, he stated that our planning system was too important to tolerate any hint of corruption or impropriety. Every elected representative would fully concur with that view, and it is underpinned by this resolution. The terms of the Flood Tribunal were to inquire into certain planning matters and to restore public confidence in the planning system. The planning system is of such paramount importance to the country that we cannot tolerate even the slightest hint of corruption or impropriety. This applies to officials who make planning decisions and to local authority members who adopt development plans. The original terms of the Flood Tribunal provided for an investigation into payments which Mr. Burke himself acknowledged having received from Mr. Gogarty in the context of our planning system. It is unfortunate that Mr. Burke did not avail of the opportunity of making a personal statement to the Dáil to give a full list of the contributions which he had received. If he had done so, it might not have been necessary to extend the terms of reference.

It now appears that Mr. Burke received at least one other large contribution and it is only right that the Flood Tribunal should be enabled to investigate and establish if there was any impropriety on the part of the person giving the contribution or on Mr. Burke's part in receiving it. Extending the terms of reference might not have been necessary had the Government heeded the request of the Opposition for more open ended terms of reference in the first instance. The Government argued then that it could not change the terms of reference of a sitting tribunal, but I am pleased that the Attorney General, having consulted with Mr. Justice Flood, has agreed to examine this matter.

The tribunal can only work effectively if it receives the full co-operation of every individual and group, especially those which have relevant information which would be helpful to the tribunal. There has been much speculation about which members of Fianna Fáil knew about the £30,000 payment to Mr. Burke and I hope that they will give all the information available to them to the tribunal.

The political system has been seriously damaged in the last 12 months, especially by revelations made to the McCracken Tribunal and the comments which Mr. Justice McCracken made about politicians receiving large contributions, which the Minister of State referred to. The tribunals set up recently and this tribunal are very important in our endeavours to restore public confidence in the political system, but we have a long way to go before we can fully restore public confidence in politicians.

[730] It appears that only a few politicians may have misbehaved, but that has rocked the political system. The Flood Tribunal, assisted by this motion, must speedily restore public confidence in our planning system.

Mr. O'Donovan: Information on Dennis O'Donovan Zoom on Dennis O'Donovan We have debated this before and I endorse the Government's efforts to bring transparency and truth to politics. This amendment seeks to broaden the terms of reference of the Flood Tribunal and I concur with Senator Doyle: it is a pity that there are a couple of bad apples in the political system. There is no point in saying that one party is totally clean; the problem is that a very small number of politicians — no more than 2 per cent of the whole — have created a political storm that has undermined public confidence in us all. That is regrettable, because there are decent and honourable men and women in the Oireachtas and in county councils all over the country.

I must have made hundreds of representations on planning matters in my 13 years on Cork County Council and sometimes a person might thank me by buying me a pint in a pub. It is wrong to have such large contributions, as these give rise to allegations and innuendoes. The answer is to allow Mr. Justice Flood and his tribunal to investigate these matters fully. Both Coalition partners' policies in this matter are clear. They want to get to the bottom of the matter and ensure Members of the Oireachtas and those in public life do their work honestly and openly.

I fought four general elections and see nothing wrong with somebody giving me £300 or £400 towards my campaign. Once it is declared there is nothing immoral or illegal about it. Campaigns can be costly. However, giving huge sums of money up to £50,000, perhaps by building companies, with the intention of receiving political favour is wrong and must be stamped out. There is a long road ahead for politicians if we are to restore public confidence. From time to time we are guilty of throwing allegations and spreading rumours and innuendo. The Government has taken a particular stance on the matter. We must all examine what is being said, restore public confidence and convey to the people that politics is about many things but it is not about corruption. Those foolish enough to go down that road will be punished and irreparable damage will be done to their careers, etc.

I thank the Minister for coming to the House and the Whips for co-operating fully in processing legislation. Much legislation has been put through the House in the last few days; this would be nearly impossible without the co-operation of the Whips.

Mr. O'Toole: Information on Joe John O'Toole Zoom on Joe John O'Toole The crucial issue is raised at the end of the Minister's speech when he said the process could be fatally undermined if the public does not have confidence in the planning system. Anyone who thinks this concerns an investigation [731] into the planning system is wrong: this is about politicians, political life and the standards that pertain in it. The establishment of the commissions and the extension of the terms of reference, which I support, is about much more than this. People are not talking about the planning system but about political life. They are not talking about where houses were built or rezoning but whether politicians do their work honestly. It is important that we focus on this issue and that we are not afraid to grasp the nettle.

There are good and decent people in every party and group in both Houses. It is shameful the way people whom I know to be hard working and diligent are tarred with the brush of corruption. I hold most of those I have met during my 11 years as a Member in high regard, even though I may have substantial, serious and continuing difficulty and differences with them in terms of their beliefs and policies. However, that is a different matter.

The Minister mentioned the Taoiseach's reference to the establishment of a commission on standards in public office. I ask the Minister to take some of what I have to say on board, consider it and discuss it with his party colleagues. I also ask other parties to discuss the matter. The more the Taoiseach refers to a commission the more worried I become as to what will be the end product. I strongly believe in self-regulation and that politicians should look after their own profession, ensuring it is properly run, organised and policed. A commission on standards in political office, concerned with the work of public representatives, should be chiefly made up of politicians. The work of the committee should reflect what is done in other professions. Responsibility should not be handed to a group of outsiders. If the Taoiseach decides to allow outsiders set standards for politicians he will effectively be raising a white flag and saying we cannot do our own business. It would disable us and take from us ownership of standards of ethics and conduct in our profession and the responsibility of getting our own house in order. These are hugely important issues.

Statements by Minister's on extending authority to various groups, devolution of power and subsidiarity all concern people's ownership of the standards by which they work. If ownership is taken away people are no longer part of the decision making process. The same must apply to politicians. We cannot have lower standards for ourselves. We should insist on the same breaks we want other groups and professions to have.

We should establish a council or commission which is not too large and the majority of whose membership is politicians. There should be some outsider input, as is the case in other professions such as teaching councils, in order to let in air and light. The British Medical Council has included people outside its profession as has the Law Society of Ireland. The Law Library is in the process [732] of doing the same. In regulating a profession everybody recognises the importance of having a majority of the profession on the group determining standards, but there should also be external members.

In our case the group should in the main consist of politicians and set standards, rules and regulations. It should determine how to deal with such issues as consultancies, donations, criminal actions, bankruptcy, corruption and many other issues which arise. We should determine standards for ourselves in the manner we expect other professions to operate. We do not expect people from outside a particular profession to regulate that profession. The majority of members of the commission, whatever it is called, should be Members of the Oireachtas while the minority should include carefully chosen outsiders from different groups.

There should be two groups within the commission or council, one to decide due process when allegations are made against a Member or former member of either House. The due process should constitute, in legal terms, a domestic remedy. Giving due regard to the principles of natural justice, due process and the fundamental rules of evidence and cross examination, the group should carry out the investigation and inquiry, form a conclusion and make a judgment. This process should be done carefully and properly. The other group should be charged with examining the judgment and decide on the imposition of penalties. The types of penalties should be previously established by the commission and, in industrial relations terms, include reprimands, warnings, final warnings, fines, impositions, etc. Another penalty might be the striking off of a Member, something which can happen at present in the context of bankruptcy, for example. The legislation would have to be changed to govern the establishment and work of the commission. If people were not happy with the outcome they could appeal to the High Court.

It is completely wrong to continue to publicly reinforce the impression that the only way to clean up political life, find the problems or expose corruption is by getting outsiders to do it. Almost every other profession has proved that this is not the best way to do so. Nobody knows better than the members of a profession or working group where to look, where things are likely to be lost, hidden or covered up and the potential scams.

I completely support the Taoiseach's good intentions. The Minister of State stated:

Another very significant step in ensuring high standards in public life and underpinning public confidence is the Government's commitment, already announced by the Taoiseach, to establishing a permanent commission on standards in public office. This would have a wide ranging mandate to investigate allegations of misconduct in public office and by all elected representatives.

[733] I recognise the difference between public office and elected representatives, but that is a matter for another day. I am not sure if the Minister of State is the most senior person in both Houses or if any Members have longer service, but he has been through here and has seen it all. I speak as an Independent, who tend to be seen as cleaner than clean which is nonsense. Nobody is any different to anybody else in these Houses and I never try to milk that particular impression. I ask the Minister of State to allow us to determine and set our own standards, police and implement those standards and take action where there have been transgressions.

I am conscious that I speak as an Independent and of perhaps saying things which party politicians may not be able to say because people would say they were trying to cover up something. I have seen how the system works and we will rue the day if we hand this over to people other than the Members of the Houses. It would be wrong, regressive and different to what is done by other professions. I ask the Minister of State to bring that point to the attention of the Taoiseach, who perhaps might come to the House for a couple of hours to ask us our views on this matter and not only come here with a proposal.

On the planning issue, part of the problem has been created by the fact we as public representatives have not been prominent enough not only in defending but in promoting and explaining the need for rezoning. The country cannot develop as it is doing without a necessary building programme, including factories, houses, etc. I make no judgments on the outcome of this inquiry, but I have lived in north Dublin since 1969. Joan and I built our own house there in the early 1970s and I have been through the planning process. I do not know how much better or worse it is there than in other counties because I do not have experience of them. However, I had difficulty getting planning permission because I was building in a greenfield area.

I regret the fact that people in the area whom I taught when I was a teacher have not been able remain living in the area — although they work only ten or 12 miles away — unless they were related to farmers who had land on which they could build. The lack of planning and development in the area is destroying many small communities in areas like north county Dublin. Proper planned development is needed in those areas. Recently I read that Dublin has the widest spread of population of any city in Europe comparable in size. That is an issue at which the planning people must look. The reason is that planning permission has been denied except in cases where people put forward a strong case. As a result, there has been a huge amount of ribbon development which is not the best type of development, particularly in areas close to a city.

It is hugely important that public representatives use every opportunity to say that we need planning and rezoning. I have said regularly that [734] whenever somebody tries to set up a small factory or whatever, those who object are the people who have been in the area for about a year and a half and who pulled every string and applied much pressure to get into the area. As soon as they do, they take the selfish view that nobody else should live there. This is part of our culture in that if somebody sticks a spade in the ground we all line up behind to object even before they turn the sod. That type of Luddite, regressive and backward looking attitude has been reinforced by the fact that we are less than forthcoming in putting forward the proposal that we need this type of development.

I know many of the county councillors in my area of north County Dublin, the area under focus, and they are decent people who get much unfair criticism. They do the job as well as they can. I am not aware of any evidence of corruption, although I have heard the story like everyone else. I hold in good regard the county councillors who have represented me for the past 30 years, from all parties and no party. It is important that we say that. I am not and will never be a county councillor. Their job is thankless and those of us who do not depend on them for their votes should recognise what they do.

I support the proposals before us today and the sentiments expressed by the Taoiseach. The Minister of State has considerable experience in public office and I ask him not to be shy in putting forward his views on how we regulate ourselves in political life. It could be said that his party mentioned these issues over many years but it is not the only party with these concerns. It is a matter on which we need to take a strong stand and about which we need to be straightforward. We should clean up whatever needs to be cleaned up and ensure standards are maintained in the future.

Mr. Dardis: Information on John Dardis Zoom on John Dardis I welcome the Minister of State, who seems to be spending much of his time in this House.

Mr. O'Toole: Information on Joe John O'Toole Zoom on Joe John O'Toole His party wanted to abolish it.

Mr. Dardis: Information on John Dardis Zoom on John Dardis It is a measure of the Minister of State's liberalism that he is prepared to spend so much time with us. We are beginning to suffer from legislation fatigue but that is not to diminish in any way the importance of this motion, which I support. An important sentence in the Minister of State's address which bears repeating was that we should not pre-empt the workings of the tribunal on the matters before us. It would be improper of us to use our privilege to pre-empt proceedings as we would be threading on dangerous ground. That caution from the Minister of State is one we must take on board.

The majority of those who operate the planning system, whether county councillors or officials in the planning departments in the various authorities, do so openly and honesty. There [735] is nothing improper about people making representations for or against a planning application provided it is done in an open and honest way. In my constituency, a public representative made representations on behalf of those in favour of and those against a proposal. That showed a marked degree of balance on the part of the public representative, whom I am reluctant to name.

Mr. O'Toole: Information on Joe John O'Toole Zoom on Joe John O'Toole Is he a lawyer?

Mr. Dardis: Information on John Dardis Zoom on John Dardis He is an accountant, so perhaps that tells us something. The planning system should be open and transparent as is required. We must congratulate and thank Judge Flood for seeking to have his terms of reference expanded. I wish him well with the investigations which are ongoing and with those which will be pursued. The ultimate objective is to establish the truth. However, this is the difficulty. Unfortunately, it appears the only way it can be done is through the institution of tribunals of this kind.

Senator O'Toole referred to the commission on standards in public office. I understand the proposals regarding this matter will be presented to the Oireachtas Joint Committee on Finance and the Public Service, of which the Senator and I are members. All these aspects will be considered there.

While we impose regulations and rules here, the disciplinary aspect has been deficient. I recall cases where matters giving rise to improprieties of a minor nature — for example, something having been said — come before the Committee on Procedure and Privileges, which then makes a ruling. However, it appears to be very difficult to exercise a sanction. Other than in the narrow cases defined by legislation, such as bankruptcy and the holding of a criminal conviction, as being reasons for disqualification, there does not appear to be proper disciplinary procedures. The illogicality of this is reinforced by the fact that while it is possible to suspend Members for disorder in the House and have them excluded from one or several days' sittings in certain circumstances, if a misdemeanour is not picked up or is unrelated to something that took place in the House there does not appear to be such a disciplinary procedure. This should be looked at when the matter comes before the committee and both Houses.

There are examples where self regulation works well — for example, in the case of the Medical Council or the Bar Council. It is possible for areas of public life to regulate themselves well and to do so openly and transparently. It is the position of the Progressive Democrats to restore public confidence in democratic politics — I am sure that is the wish of other parties also — to ensure our democracy is strong, that people can have confidence in their public representatives and that the system can operate well, efficiently and openly.

[736] It is also important that we proclaim the value of democratic politics. It has deficiencies, which are underlined by these tribunals. However, it is the best system we could have. It is infinitely more preferable to any of the alternatives. It is important that, as practising politicians, we say our work as part of a representative democracy is important and, by and large, well done.

On the matter of rezoning I must declare an interest because I have had land rezoned by Kildare County Council. However, there are large sums of money at stake and there is the potential for improprieties to occur in the context of the amounts involved. Those who appear to be most opposed to the rezoning of land or to planning applications for housing estates are frequently those who also protest that house prices are too high. There appears to be a basic inconsistency between those two positions.

There is also the matter of “not in my back yard”. Many people have come to live in north County Kildare in recent years. They settle in very nice housing estates and their children go to local schools. Yet, when somebody wants to join them in a neighbouring housing estate not yet built, they appear to regard it as something that should not happen. They have reaped the benefits of being able to move into an area, but they want to deny it to others. It does not seem to be a consistent position.

The Minister of State referred to the Electoral Act, 1997, and the Ethics in Public Office Act. There is an increasing raft of legislation which regulates donations and public life. The commission on standards in public office will be another element in that process and it is to be welcomed. However, these matters will be for scrutiny on another day. It would be improper for us to comment directly on any of the specific aspects which are dealt with by the motion and by the terms of reference of the tribunal.

Ms O'Meara: Information on Kathleen O'Meara Zoom on Kathleen O'Meara I hope it is legislative fatigue and the fact that we are on item 7 of our business today that has led to such a low attendance for this important debate. Perhaps it is also fatigue for the subject because it must be at least the third time since the House convened last autumn that this issue has come before it in some related fashion, whether it has been legislation to amend the Tribunals of Inquiry (Evidence) Acts, motions or whatever. I suspect it will not be the last time, because even this morning the newspapers refer to new questions that have arisen with regard to payments made to former Deputy, Mr. Ray Burke, which are at the centre of this tribunal of inquiry.

While the motion is uncontested, it is unusual there is no facility for putting down an amendment. That was not the case in the past. As it happens, the motion is very comprehensive and notable in that, for the first time, it mentions the former Deputy, Mr. Ray Burke, and the need to investigate any suspicion of corruption surrounding [737] payments made to him. However, given its comprehensive scope, it is being supported. If this kind of response had been available last autumn when the issue first arose we probably would not have debated it on three or more occasions.

The Minister of State and other Senators have referred to planning. However, the tribunal is not really concerned with planning. All these issues are about politics, corruption in politics, the cloud that hangs over political life, ethics in public office, standards in public life and that wide range of issues which have arisen with regard to these and other payments.

A cloud has hung over the issue of planning, especially in Dublin where it has been a matter of rumour and speculation for a long number of years. There was the beef tribunal and the Dunnes payments tribunal, which has not yet completed its work. There are currently two tribunals of inquiry and other investigations. While most Members of this and the other House find it very uncomfortable and while we all recognise it is not a good time to be in politics, we must recognise this is a process we must go through. In many ways this is a very painful period in our democracy. However, when we emerge at the other side I hope we will have learned very important lessons.

The central lesson we must learn is the separation of public and private interests. The Ethics in Public Office Act has that as its central tenet. The Act requires the registration of donations and interests so that members of the public are clear about the candidates for whom they vote. This is a basic element of European democracies which we, in Ireland, have only recently discovered. While I welcome the Taoiseach's commitment to introduce more advanced legislation in this area, I hope he will receive the support of his colleagues and I hope there will be total recognition across all political parties and representatives of the need for legislative underpinning of the separation of public and private interests.

I have reason to remember the discussion surrounding the Ethics in Public Office Act as I was working for the then Minister, former Deputy Eithne Fitzgerald, when the legislation was introduced. Accusations were made that the legislation went too far, interfered in people's private business and was unnecessary. We now know it was entirely necessary and the current Taoiseach is planning to advance it. I find it interesting that the quarters which so opposed the legislation at the time are now in favour of it.

I distinctly recall the former Deputy for Laoighis-Offaly, Ger Connolly's, vociferous and strident opposition to the Bill which the democratic process rightly allowed him to express. He saw the Bill as a totally unnecessary interference in people's private lives. That showed a failure to realise that we have a public responsibility as public representatives and that it is important to state that responsibility, particularly in relation to [738] the maintenance of standards in public life. It seems to me that until such time as that fact is taken on board and totally understood, we will not succeed in shifting the cloud currently hanging over political life.

It is interesting to note that the former Deputy Connolly has been replaced in Laoighis-Offaly by Deputy Fleming, former accountant and financial adviser to the Fianna Fáil Party. I examined Deputy Fleming's contribution on this issue in the Dáil yesterday in detail and it raised more questions than it answered. I wonder whether the trench the Deputy has started to dig, presumably to protect himself and blame the former Taoiseach, Deputy Haughey — the whipping boy for all Fianna Fáil's past sins — will ultimately lead to the current Taoiseach. The sequence of events outlined by the Deputy is quite bizarre. Deputy Fleming claims he first became aware of the payment to former Deputy Burke at a fundraising lunch in 1989. When he received a cheque from Mr. Burke for only £10,000, he brought it to the attention of the party leader. The following is an excerpt from Deputy Fleming's Dáil contribution:

I was aware since the previous evening that Fitzwilton was to make a large contribution to the Fianna Fáil Party through Mr. Ray Burke. When he arrived we asked him for the cheque and he gave the envelope to Paul Kavanagh or myself. On opening it we saw it contained a bank draft for £10,000 . I was not satisfied that £10,000 was the full amount of the contribution. Both of us asked Mr. Ray Burke where was the balance. He told us that £10,000 was the amount that was being given to party headquarters and the rest would be used for his constituency purposes.

Immediately after that Mr. Paul Kavanagh and I spoke to the then party leader, Mr. Charles Haughey, who was at the luncheon. We pointed out to him that we believed the party's national fundraising committee had been left short in respect of this donation. Mr. Charles Haughey indicated that we should leave the matter with him.

The fact the Deputy spoke to the then party leader shows this was obviously a matter of some consternation within the party.

Deputy Fleming went on to point out he was elected a Member of Dáil Éireann in June 1997. Prior to that, he was a candidate for election, one who had declared his interest in becoming a TD long before the election was called. Deputy Fleming also outlined the sequence of events of last year. The Deputy returned to Ireland from holiday before Mr. Burke made his statement to the Dáil on 10 September 1997. Members will recall the country was awash with rumours about payments by Mr. Gogarty to Mr. Burke at the time which resulted in former Deputy Burke making his Dáil statement.

Deputy Fleming stated he telephoned Mr. Burke directly around this time. Mr. Burke was [739] Minister for Foreign Affairs at the time, a man whom we know to have been extraordinarily busy and absorbed with matters in Northern Ireland and foreign affairs generally. However, Deputy Fleming managed to speak to him directly although he pointed out he did not discuss the matter with the Taoiseach. Deputy Fleming also made the following extraordinary statement:

In Fianna Fáil there is a longstanding practice and an unwritten rule that party officials and fundraisers do not discuss the details of individual donations with the party leader or other senior party members.

That did not prevent Deputy Fleming discussing the matter with Mr. Haughey in 1989. Only a few days after making a statement to the Dáil, the then Minister for Foreign Affairs resigned. That was a major political scandal and I find it unbelievable that someone in Deputy Fleming's position did not speak to the Taoiseach about such an urgent issue.

This motion, comprehensive and welcome as it is, would not have been necessary if the Government had not been dragged kicking and screaming into a realisation that in its response to this and other issues, it must be comprehensive, open and up-front. I wish the Taoiseach well in regard to his proposals on the ethics commission. If only we were at a position where the public had sufficient confidence in us to allow a situation where we could regulate our own affairs, we would not have to bring in what Senator O'Toole referred to as outsiders. Any public offices commission would have to be chaired by a High Court judge in my opinion although I realise there are constitutional issues involved in regard to the separation of powers and so on.

I want to use the swimming issue for the purposes of analogy. Members of the public will not believe any report by the swimming fraternity itself into allegations of abuse. We still do not have confidence in the IASA although we do have confidence in the Murphy report as it was an independent one. All such investigations must be independent. The current Ethics in Public Office Act is a fine piece of legislation and I hope the Taoiseach does not feel hounded by a public perception of corruption into producing something which may not be suitable or appropriate. I am aware that major constitutional issues surround this matter.

If we are to restore confidence in public office, we must set standards for the operation of public life and those standards must be firmly based on a recognition, first and foremost by Oireachtas Members, of the need for a separation between public and private interests. We have gone beyond the stage where people can say everyone knows what they are like. The cloud which hangs over us now affects everyone and questions everyone's integrity. It is hard to take that on board because we know there are very few rotten [740] apples and the vast majority of us do our best to serve the public.

Mr. D. Kiely: Information on Daniel Kiely Zoom on Daniel Kiely I welcome this motion to broaden the terms of reference of the tribunal. I will not be slinging mud because at the end of the day public representatives are all tarred with the same brush. Politicians have a poor reputation among the general public. We make progress and then another scandal breaks and embarrasses us all. There are bad apples in every political party in the State — I could identify plenty here.

I have fought many elections and I never received a penny from anyone. The one contribution to me was made by my cumann after I had fought five elections in 18 months. After the fifth election I did not even have the price of a tank of petrol for my car and my organisation gave me a few pounds.

I have been a public representative for 20 years. No one has put his name to as many section 4s as I have in County Kerry. I was signing section 4s to divide an acre lot when a father was trying to give his son or daughter a half acre to build a house and they were ten feet short for the purposes of the County Planning Act. It would take six years to change the county development programme. County development plans are more flexible now — an acre lot which is a few feet short for frontage will be overlooked and section 4s are unnecessary.

Tribunals are the greatest disasters this State has ever seen. They are an enormous drain on the taxpayer. The money could have been put to better use building new roads, houses, sewerage schemes and rezoning land. The people wearing the wigs love tribunals, they make millionaires of many of them. I compliment the Taoiseach for putting together a commission to draw up a code of ethics for public life. Every candidate will have to account for their election expenses whether or not they are elected.

Perhaps there has not been enough land rezoned causing the price of housing to rise. I was glad to hear Senator O'Toole saying that people are holding onto land. This is an ideal opportunity for Dublin Corporation to rezone land and install the proper infrastructure thus reducing the price of houses. That should be done throughout the State.

Minister of State at the Department of the Environment and Local Government (Mr. Molloy): Information on Robert Molloy Zoom on Robert Molloy I thank the Senators for their contributions to the debate on this motion. As one of the longest serving Members of the House it gives me no joy to be here to discuss a matter of this nature. It is sad that events have occurred which have led to the necessity to establish this kind of tribunal. It is not for us to make any judgments about the matters which are being investigated. That is the purpose of the tribunal and the work is best left to the member of the Judiciary who [741] has been appointed by the Government to undertake that work.

I wish to record my appreciation of the co-operation given by the Opposition parties in agreeing to the text of the amendments deemed necessary to the original terms of reference. The text presents to the House the fruit of much co-operation between the Attorney General and his staff, and Judge Flood and his legal team.

In working on the text for the extended remit of the tribunal, the Attorney General was given a clear indication that these payments which have been the subject of so much speculation and comment over recent weeks should be investigated in the fullest possible manner. Not alone do the extended terms of reference cover matters which are already in the public domain but they also enable the tribunal to investigate any other payments or benefits received by Mr. Burke which may be brought to its attention. It is difficult to see how we could have a more comprehensive inquiry under the provisions of the Tribunals of Inquiry Acts. The Opposition parties have acknowledged this and, just like the original terms of reference of the Flood Tribunal, the amended terms of reference before the House enjoy cross-party support. This strengthens the moral authority of the tribunal.

Senator Avril Doyle said that this amendment could have been avoided had the Government agreed to widen the terms of reference in October. The Government's concern at all times has been to ensure an effective tribunal. One has to look at the terms of the 1921 Act under which these tribunals are established. That Act allows for the establishment of a tribunal to inquire into definite matters of urgent public importance. Very wide terms of reference would risk being ultra vires of the 1921 Act and could be overturned subsequently by a court challenge. The situation has changed now that information about another substantial payment to Mr. Burke has come into the public domain. In the light of that it is entirely appropriate that the terms of reference be amended.

Senator O'Toole referred to the proposal to establish a public offices commission. I want to make it clear that intention is under consideration at Government level and no final decision on it has been made. The proposed public offices commission would set the standards for politicians. I agree it is a matter for politicians to set their own standards and lay down the ethics to which they expect Members to adhere. It must be ensured that where those are transgressed there are adequate and proper procedures in place to follow up allegations of impropriety.

It is envisaged that a permanent commission would have the status of the High Court and the powers of a tribunal of inquiry. It will be empowered to investigate allegations against public office holders, elected representatives and officials. The Government will be bringing these [742] proposals forward shortly and both Houses will be given an opportunity to debate them. Senator O'Toole can then argue his case that these matters should only be subject to scrutiny by Members of the Houses themselves. The Senator looked at me and said that because I was one of the longest serving Members I must have experience of how the House operates and that I should support that view. My experience leads me to a different conclusion and I would not support that view. I am well aware of what happens in the Committee on Procedure and Privileges and other committees. In many cases, sides are taken by Members based on political affiliations. Having gone before some of those committees in a personal capacity as a Member of the House, no Member could be certain that matters would be adjudicated purely on the facts. There is far too strong a political alignment in these committees.

On the occasion I went before a committee, I felt that I was in a star chamber. A Member of this House made an extreme statement about me for which he subsequently apologised to me. However, that was not much use after the statement had been made in committee. Senator O'Toole appealed to my experience as to whom I think is best qualified to make an impartial decision. One cannot go to a better source than the Judiciary in which the public has full confidence.

The establishment of such a commission is not a reflection on the excellent work carried out on our behalf by tribunals. However, it is clear that ad hoc tribunals are not the most efficient way of carrying out such investigations. Given the workload of the Judiciary and the number of demands for tribunals, it would seem reasonable to have a permanent commission to which allegations could be referred and which would have the machinery and officials in place to ensure that matters were properly examined.

There would also be significant delays if we continue with the present situation whereby tribunals have to be established. It takes time to staff tribunals and get them up and running, so a permanent commission would seem reasonable in order the deal with the epidemic which has struck public life. This has to be rooted out and the only way to do so is the determined and resolute manner in which the Government is tackling the matter.

I thank Senators — except Senator O'Meara — who resisted the temptation to go into detail on matters which are the subject of the inquiry. Those involved are entitled to have their actions assessed by the tribunal. It will fully investigate these matters and will give those involved the opportunity to put their side of the case in accordance with the principles of natural justice supported by most people. The proper time for Members to comment is after the tribunal has reported its findings when the facts are available and when we can consider what follow up action is required.

[743] In particular I thank Mr. Justice Flood, who is acting in a true spirit of public service in undertaking these responsibilities. He is acting as the sole member of the tribunal, which places great responsibilities on his shoulders. On behalf of the Government and the House I thank him for his co-operation in agreeing to chair the tribunal. He has done so in the public interest and is now taking on the extended remit which this House is giving him. I wish him every success so that the true facts are established and we can get away [744] from false allegations and innuendo. Where positive facts are established appropriate action will be taken.

Question put and agreed to.

An Cathaoirleach: Information on Brian Mullooly Zoom on Brian Mullooly When is it proposed to sit again.

Mr. D. Kiely: Information on Daniel Kiely Zoom on Daniel Kiely Tomorrow at 10.30 a.m.

The Seanad adjourned at 6.05 p.m. until 10.30 a.m. on Friday, 3 July 1998.


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