The Taoiseach fears possible future legal challenges to the Flood tribunal if its chairman, Mr Justice Flood, retires before dealing with the issue of legal costs.
Mr Ahern told the Dáil yesterday that Mr Justice Flood had written to the Government and wished to resign as chairman but to remain on as a member of the long-running tribunal dealing with payments to politicians, which to date has cost €26 million, excluding the monies for those claiming legal costs.
The tribunal chairman also said in his letter that because the issues of costs would be "exceptionally demanding work over an extended period of time", he proposed that Mr Alan Mahon, a member of the tribunal, would be appointed as the new chairman of the tribunal and would deal with costs.
The Government would prefer Mr Justice Flood to deal with the issue of costs because of concerns about the prospect of future challenges to the Flood tribunal arising from this issue. Mr Ahern also said that the tribunal could take up to 15 more years to complete its work.
Mr Ahern said that the Government would be writing back to the tribunal chairman, seeking clarification on a number of issues, and it would carefully consider the matter rather than "rush in this week or next" with legislation. The issue of costs was "enormously important and could lead to liabilities to the State". He was not saying that this would happen, but it could happen.
The judge "considers himself unable to continue to act as chairperson of the tribunal", the Taoiseach quoted from the letter of June 16th. The chairman had made it clear that the duties and responsibilities of being chairman, and particularly of determining the issue of costs, would require "significant levels of physical and mental stamina and capacity to carry out exceptionally demanding work over an extended period of time". Continuing to act as chairman would pose an "undue strain" on him.
Mr Ahern said that the tribunals legislation allowed these changes to occur, but amending legislation would be required on the costs issue "to ensure that the correct procedures are followed and that future determinations of the tribunal are valid and legally sustainable". He said that Mr Justice Flood had dealt with all the tribunal's issues, adding: "If he does not deal with the costs, a question clearly arises."
The Fine Gael leader, Mr Enda Kenny, suggested that people already interviewed before the tribunal "may well challenge its findings because Mr Justice Flood will not be in situ".
The Labour leader, Mr Pat Rabbitte, asked if somebody who did not hear the case could now be asked to decide costs. These were an issue of public interest and there was a "punitive value" to levying costs against people who disrupted the tribunal.
Mr Rabbitte emphasised that the issue of costs was of such importance that the Dáil would need to be assured that the Government had "unqualified advice" that it could pass the issue of costs to another chairperson.
He asked if the tribunal chairman would make a second interim report "before the baton is handed over" and said it appeared that the Dáil's youngest TD, Mr Damien English, would be a pensioner before the tribunal was finished.
The Green Party leader, Mr Trevor Sargent, said: "Quite a number of witnesses may be dead, and we will be wondering what their evidence and the outcome of the tribunal would have been."
Mr Joe Higgins (Socialist, Dublin West) said that when the tribunals had moved from investigating millionaires to creating them through legal fees to barristers, something had "gone seriously off the rails".
Mr Ahern said that while the fees to tribunal lawyers had cost a great deal, "you have to pay those rates to get the individuals involved, for they would command that kind of remuneration in private practice if they were not on tribunals".
He told Mr Caoimhghín Ó Caoláin (SF, Cavan/Monaghan) t there was no question of the matters under investigation in the tribunals not being investigated.
The Taoiseach told Mr Kenny that the Moriarty tribunal costs to date were €13,110,000 and those of the McCracken tribunal to date were €6,655,763.
Mr Kenny expressed concern that the Moriarty tribunal had been sitting for 18 months, but there had been no direct evidence so far. Mr Ahern replied that it was intended that the Moriarty tribunal would finish its evidence this year. "But that does not mean its report will be written up this year", he said.
