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How the tribunal fell from grace
Shane Coleman Political Correspondent



The days of queuing around the block to hear James Gogarty's testimony have been replacedwith apathy and hostility to the soaring legal bills. So what happens now?

IT says something about how far the stars of the two big tribunals in Dublin Castle have fallen that two government ministers felt sufficiently emboldened last week to say 'enough is enough'.

At the beginning of the decade, when Flood (now Mahon) and Moriarty were in their pomp, cutting a swathe through political corruption, TDs lived in fear of their all-encompassing power. Privately, there may have been some grumbling, but in public, no politician who wanted a future in DA il Eireann would dare to question them.

However, 10 years of, at times, snail-like progress, soaring costs and headlines about millionaire lawyers have resulted in a seismic change in public opinion. The highly acclaimed reports from both tribunals have become the legal equivalent of eaten bread. The days of queues around the block to hear James Gogarty's testimony have been replaced by, at best, widespread apathy, and at worst, downright hostility to the soaring legal bills.

It was only a matter of time before the government would be tempted to shout 'stop'.

What is the origin of the dispute between the Mahon tribunal and the government?

It can be dated to a decision by finance minister Charlie McCreevy in July 2004 to attempt to curtail what he had described as the tribunal "gravy train" by cutting the daily rate for senior counsel at the tribunals from Euro2,500 a day to Euro900. In a letter to the government on 24 July that year, the Mahon tribunal made it clear that if the fees paid to its lawyers were reduced, there would be a loss of lawyers from the tribunal.

The government, horrified at the prospect that it would be accused of undermining the tribunals, backed down and a compromise was reached, whereby the government agreed to extend the existing fees structure until March 2007. The government expected that the tribunal would either be finished by then or the new, lower fee structure would come into play.

To facilitate a speedier end to the tribunals, and at the behest of the tribunal, the government introduced legislation allowing for divisions of the tribunal to have separate hearings - which has never happened - and amended its terms of reference.

The tension really began to develop in the relationship between the tribunal and the government at the end of 2005. The tribunal wrote to the Department of the Environment looking for sanction to hire counsel for an upcoming legal challenge to the tribunal's work. The tribunal engaged three senior counsel and three junior counsel and wanted to pay each of the senior counsel a brief fee of Euro75,000, a daily rate of Euro5,000 and a 'reading in' fee of Euro2,000. It is understood that environment minister Dick Roche, believing these fees were excessive, refused this request and instead sanctioned a lower rate of fees for the external counsel.

The following May, the department proposed a general policy on hiring of external counsel, under which counsel would be secured at the lowest possible cost, daily fees would be agreed up front and fees over Euro25,000 would need prior sanction from the department. The tribunal was understood to be unhappy with this, arguing that it compromised its capacity to deal effectively with court proceedings.

When did the fees issue re-emerge?

The fees issue did not re-emerge until December when Judge Alan Mahon wrote to Dick Roche stating that the tribunal could not be completed by 31 March, that public hearings would continue to the end of 2007 or first quarter of 2008, and requesting that existing funding arrangements would continue.

On 26 January, Roche wrote back to the tribunal requesting clarification as to the likely time schedule and cost estimates for its work, so that he could fully advise the cabinet on the tribunal's request for an extension. On 2 February, Mahon wrote back that the final report and recommendations would probably be completed by the last quarter of 2008, while making it clear that it would not be possible to estimate the likely third-party costs, which he said he would deal with in 2008/2009. It is clear from the events of recent days that the cabinet was not happy with this response.

Is the fees issue confined to the Mahon tribunal?

No. In recent weeks, the Moriarty tribunal has contacted the government looking for a time extension for its inquiry, as the six-month extension it received last July, when it was supposed to have concluded, had run out. The tribunal was given just a one-month extension by the government until the end of March, as discussions continued between the two sides with a view to securing a realistic time frame for the conclusion of the tribunal.

Is Michael McDowell right in his predictions about the final cost of Mahon?

That is the Euro1bn question. His educated guess has certainly been disputed by Judge Alan Mahon, whose letter last week said the final bill would be under Euro300m. Sources close to government have been questioning why the judge was not in a position to give an estimate of costs to the government a fortnight ago, but was able to respond almost immediately to the TA naiste's prediction.

Legal sources say the full cost of Mahon will not be known for around five years after it finally completes its work, but the feeling in the Four Courts and within government is that the final figure will be closer to McDowell's estimate than to Mahon's. Some sources have estimated that the cost of discovery orders alone will be in excess of Euro100m.

Did Michael McDowell go on a solo run on Wednesday when he publicly raised the issue of tribunal fees?

Yes and no. McDowell probably went further than his cabinet colleagues would have liked. There is certainly a greater unease in Fianna FA il about going toe-to-toe with the Tribunal, given that Bertie Ahern is due to be called as a witness as part of the upcoming Quarryvale module. The party is nervous about leaving itself open to suggestions from the opposition that it is trying to stymie the tribunal's work for political gain.

The PDs, though, have no such concerns. And given that they need only 5% support from the electorate to prosper, they can afford to take a hard line on the issue, particularly when it is clear that at least some sections of the public are unhappy with the cost of the tribunals. However, while Fianna FA il ministers might wish McDowell had approached the issue differently, now that it's out in the open, they feel confident enough to run with it. "We might want it to die down a bit but we won't be rolled over, " said one source this weekend.

What has been the reaction of the opposition to the government's stance and how plausible is it?

Fine Gael and Labour have accused the government of engaging in a "sinister and disturbing" effort to close down the Mahon inquiry because it is terrified of what might come up in the Quarryvale module. The problem with that argument is that nobody believes Bertie Ahern will be anywhere near the witness box this side of the general election, so claims that it is a stalling tactic for electoral reasons are hard to substantiate.

So are the allegations that the government wants to close down the inquiry. Enda Kenny failed to deal with the issue on Friday's Morning Irelandwhen he was asked on what basis he was making that claim. The Quarryvale module simply has to take place. And while most voters probably couldn't care less whether it does or not, the last thing the notoriously risk-averse Taoiseach wants is for tribunal lawyers to walk out a month or two before a general election.

What happens next?

There is no obvious solution to the stand-off and the heat of recent days has not helped. It is difficult to imagine tribunal lawyers accepting a pay cut, and the government, despite its harder line of late, is unlikely to force the issue by adopting a 'take it or leave it' approach. It is understood there was some sympathy for the tribunal's position among ministers, but Judge Mahon's decision to go public with his correspondence has galvanised the cabinet.

Mahon tribunal top earners SENIOR COUNSEL Desmond O'Neill A 3,673,673 Patricia Dillon A 3,350,015 John Gallagher* A 2,860,694 Patrick Quinn A 2,457,887 Patrick Hanratty* A 1,460,343 Henry R Murphy A 1,074,026 Felix McEnroy* A 531,855 JUNIOR COUNSEL Eunice O'Raw A 2,549,250 MairAcopyrightad Coghlan* A 1,781,717 Annette Foley A 1,094,027 Adele Murphy A 907,545 Fergal Doyle A 730,568 Cathal Murphy A 706,035 Sarah O'Connell A 505,993 SOLICITORS Susan Gilvarry A 1,041,218 MA ire Aine Howard* A 974,216 Donal King A 497,310 Marcel Gribben A 413,632 *Resigned from tribunal legal team




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