How did we get here? News spilled out on Tuesday that the Mahon tribunal is estimated to cost at least €250m. When it comes to legal fees, these estimates tend to be conservative. Up the yard in Dublin Castle, Moriarty slipped further into the mire. It is now conceivable that up to €100m was wasted investigating the award of the second mobile phone licence. That's not counting the other estimated €150m in costs to be shelled out there.
Nothing illustrates the moral bankruptcy of governance since 1997 like the tribunals which have now become a blistering sore on the body politic. Waste, incompetence and political cowardice has informed the era. The greed endemic in the legal business has also come to the fore, but primarily, the blame for this era is political.
The Moriarty and Planning tribunals were set up within a month of each other in the Autumn of 1997. The previous June, Fianna Fáil and the Progressive Democrats had won a general election that was being heralded as a new departure. The past, however, wouldn't go away. Following media revelations, it was clear that Charlie Haughey, Ray Burke and Fine Gael's Michael Lowry had major questions to answer about how they acquired large sums of money.
Trust in the political system to investigate itself was non-existent. Following a series of jaw-dropping revelations, nothing less than public inquiries would have met with public approval.
From Fianna Fáil's point of view, there was a lot of muck which demanded some spreading. Hence the planning tribunal's terms of reference would not be exclusively about Ray Burke. And so the government effectively gave the tribunal carte blanche to investigate any alleged planning corruption brought to its attention.
Up the yard in Moriarty, it was obvious that a trawl of Charlie Haughey's finances would have to be extensive. What was sauce for the Fianna Fáil goose had also to be doled out to the Fine Gael gander, and so the powers to investigate Lowry's brief stint in cabinet were extended far and wide.
Wide terms of references had other advantages. Just three years previously in 1994, the beef tribunal reported on what, by prevailing standards, had been a marathon inquiry. Nobody, bar a few minor factory managers, was blamed for anything to do with the scandal of export credit insurance. Not one politician was held to account. The chairman of the inquiry, Liam Hamilton, was then the president of the High Court. A few months after the report was published, he was appointed chief justice. The general perception was it was a whitewash.
Today, it is those wide terms of reference that have ensured two tribunals are still eating money with no reports in sight. The tribunal of inquiry model was designed to investigate "matters of urgent public concern". After 13 years, the urgency has long disappeared.
The tribunal model bestows huge powers on the inquiry. Once the inquiries began to dig deep, it was obvious that witnesses against whom allegations were made would begin traipsing to the Four Courts to protect their constitutional rights. The planning tribunal alone has been subject to nearly 30 legal challenges, all of which delayed its work. Similarly, up at Moriarty, Haughey and Dermot Desmond in the early days, and Denis O'Brien in recent years, have constantly sought protection from the courts from what they regarded as the excessive powers of Moriarty.
Like the economy, both inquiries performed well up until around 2002. Then, they began to lose their way. Those running the tribunals were caught between a rock and a hard place with every new allegation that came to attention. The terms of reference provided power to investigate nearly anything. To ignore any allegations might be to invite the perception that attached to Hamilton and the beef tribunal – that the inquiry was turning into a whitewash. So on they ploughed, and here we are.
What really irks the public is the cost. Here, also, the failure to keep things tight has led to huge sums being fired around the place. Two of the Moriarty lawyers have earned over €9m, another €6m. In total, the two inquiries have made millionaires out of two dozen lawyers.
For this, blame must rest squarely with the government which set up the tribunals. Initial rates paid were in line with what the lawyers could have expected from a long case in the High Court. No provision was made for the possibility of the inquires dragging into years. The finance minister, Charlie McCreevy, provided for a reduction of £100 per day in the initial daily fees of £1,900 once 50 sitting days was exceeded. There were no further reductions included in the event of the inquiry dragging into months, and even years. The planning tribunal which completed public sittings in December 2008 sat for 917 days.
McCreevy might have derided what he called the "poverty industry", but he always had plenty of money for lawyers and horses.
One result of the outcry over the tribunal costs is that the scandal of legal costs in the courts has been largely ignored. Irrespective of McCreevy's stupidity, the legal costs in the tribunal are ultimately a function of what can be charged in the courts.
Still, the detail of the fees being charged in Dublin Castle adds to the anger. When some lawyers are claiming expenses for the likes of lunch time sandwiches eaten at their desks, on top of the €2,250 a day the state is shelling out for their amazing brains, perceptions of greed spread and multiply.
The government's loose purse strings applied to the planning tribunal even in minor matters. For instance, recent publicity surrounded the €200,000 in travel expenses accumulated by the three judges sitting in the planning inquiry since 2002.
The three, including chairman Alan Mahon, were appointed as circuit court judges to sit on the tribunal, yet they were not assigned as permanent Dublin judges, which would have minimised the expenses to which they were entitled.
Last week, members of the Fianna Fáil parliamentary party called for the two inquiries to be wound down. Well they might in response to public anger. We are a long way from 1997 now, and the political expediency in setting up wide-ranging inquires and firing endless money at lawyers is no longer required.
Meanwhile, Lowry has gone onto greater things. Dáil arithmetic means that he is now a pivotal figure in the House at a time of national peril. Moriarty has demonstrated how he lied to the Dáil, and cheated on his taxes.
Yet now, as Moriarty drifts towards scandal, Lowry is top of the world. You couldn't make it up.
In the late 1990s an Irish Times writer (Kevin Myers?) wrote an excellent piece which pointed out the utter fraud and futility of tribunals. We cannot examine ourselves; we are too small a country, we all know each other too well. These tribunals divert (park) blame while making a group of people wealthy investigating what amounts to nothing. As time passes we forget why the tribunal was started to begin with. It is nepotism at its worse. We are to blame for this as we allow it to happen; we never complain or do anything about it. It will not change until we have Federal EU oversight of these events, where outsiders, not insiders, prepare these reports. In the US Federal investigators undertake 'tribunals' with the power of consequence that go with them. We should insist that this happen here to. How long must the Irish public allow itself to be shafted in such a blatantly self-serving manner? And who guards the guards to ensure that the lawyers who are charging such fees are indeed doing a day's work? It makes me sick frankly.
Two easy solutions:
1 - Firstly, make by means of Law, all bank accounts open to scrutiny,
2- Secondly, enforce by means of law, that no bank interest is paid on personal accounts with value over for example 2 million euros. And Government would tax money over that amount on banks.
Money is a public subject, and shall always return to the system, this way.
Being accounts open, corruption would be minimal.
No interest being paid on personal fortunes over 2 million (or other amount), then money would circulate, on a more productive way.
These two small measures should be part of a bigger package that small nations such as the PIG countries should have embraced long time ago, but thats not the issue here.
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As is noted above, the Mahon Tribunal finished its 917 days of public hearings almost two years ago. While lots of articles, such as this one, continue to be written about the cost of the Tribunal, I have seen almost none asking when the hell it will ever produce a report.
In case we forget, it was the imminent examination by the Tribunal of Bertie Ahern's financial affairs that precipitated his departure from the office of Taoiseach. Would he have gone if he knew that, more than two and a half years later, the Tribunal would still not have produced any conclusions? I doubt it.
In the 1920s, a Viennese newspaper ran a competition to invent the most startling newspaper headline ever. The winner was "Franz Ferdinand found alive. Great War fought by mistake.". Is this going to be trumped by "Mahon never issues a report. Bertie resigned by mistake."?