Give Me a Crash Course In . . . the planning tribunal’s latest twist

The Flood tribunal – aka the Mahon tribunal – has been forced to withdraw some of its corruption findings. What happens now?

Witness: James Gogarty at Dublin Castle after giving evidence in 1999. Photograph: Eric Luke

Witness: James Gogarty at Dublin Castle after giving evidence in 1999. Photograph: Eric Luke

 

The planning tribunal? Was that the Flood tribunal? Yes. The tribunal was set up in 1997 to look into corruption in planning. But it was also known as the Flood tribunal, after its first chairman, Mr Justice Feargus Flood. After he bowed out some people rechristened it the Mahon tribunal, after its new chairman, Mr Justice Alan Mahon.

Did it find any corruption? Yes, lots. A series of reports showed how money oiled the wheels of planning in Dublin in the 1980s and 1990s, with dozens of politicians receiving payoffs from a variety of businessmen.

Wow. But didn’t the tribunal end years ago? Why is it back in the news? You’re right. The tribunal published its final report in 2012. In recent weeks, however, it was forced to withdraw large chunks of two earlier reports after losing a number of court cases. Many of the findings it made about people under investigation have been withdrawn. Some of the people who were supposed to be corrupt are not corrupt now. Others are still considered corrupt, but some of the payments they got or gave are no longer considered corrupt. And the tribunal has stopped saying that anyone hindered or obstructed its work, as it had claimed in its reports. Confused?

Definitely. What’s going on? It’s a bit of a fiasco. It comes down to doubts about the credibility of the tribunal’s star witness in its early days, James Gogarty. He was the octogenarian former building-company executive who told the tribunal that he witnessed a bribe being paid to the Fianna Fáil minister Ray Burke in 1989. Gogarty said he asked the developer paying the bribe, on the way over to Burke’s house, “Will we get a receipt?” and was told, “Will we, f**k!”

I remember that. What else did he claim? Gogarty, whose motivation in talking to the tribunal was to get back at his employer about a pension gripe, made a lot of other allegations. The tribunal didn’t believe they were relevant and didn’t pass them on to the other legal teams at the inquiry. Years later this decision came back to haunt the tribunal when it was criticised by the Supreme Court. In effect the judges asked how Gogarty could be believed on the Burke payment if he was making other allegations that had no foundation. Lawyers for Burke and the others whom Gogarty accused of corruption didn’t have a chance to quiz him about the other allegations because they didn’t know about them at the time.

What does Gogarty say to this? Unfortunately, he has been dead for almost a decade, so we don’t know. Mr Justice Mahon, who has inherited this mess, had to make a decision. If he didn’t act the courts might have forced him to do so anyway. So the tribunal has decided to pull all the findings that were based on Gogarty’s evidence.

Oops. So is Ray Burke in the clear? No. The tribunal made adverse findings about other payments he received, unrelated to Gogarty, and they still stand. But he will still get his legal bills paid by the taxpayer, and that could cost up to €5 million.

Wasn’t Bertie Ahern up before the tribunal? What does this mean for him? Yes, Ahern figured in the tribunal’s final report, as did Frank Dunlop, the lobbyist who bribed dozens of Dublin councillors. The present controversy doesn’t concern that report, which stands in its entirety.

Was it worth it all? The withdrawal of the findings based on Gogarty’s evidence means years of work at the tribunal were largely wasted. But other findings stand, including those in the final report. The tribunal may have helped stop further planning corruption, and its work indirectly helped Revenue bring in extra millions from special investigations. The estimated final cost of the inquiry, down to the last euro, is €158,183,147.