The eloquence of Mr Foley's silence

 

Last September, in the course of its hearings on the role of Irish financial institutions in the evasion of taxes, the Public Accounts Committee interrogated witnesses from Irish Life and Permanent, the current owners of Ansbacher Cayman.

The committee's vice-chairman, Denis Foley TD, was part of the team that questioned the bank's representatives about the Ansbacher deposits. He sat quietly while his colleagues, Pat Rabbitte and Jim Mitchell, grilled Irish Life and Permanent's Roy Douglas. He listened silently while Mr Douglas blithely insisted that the Ansbacher Cayman scheme was "a simple straightforward set of relationships that exist between a depositor and a bank".

Though he chipped in with a few vague questions about the role of non-resident accounts in audit procedures, Denis Foley was notably less active in the questioning of Irish Life and Permanent than the rest of his colleagues.

At the time, his reticence seemed insignificant. Only after Thursday's revelations at the Moriarty tribunal that Mr Foley himself was a party to Ansbacher Cayman's simple straightforward set of relationships might his colleagues begin to wonder whether his relatively mute demeanour that day was not, in its own way, rather eloquent.

According to Denis Foley's own account, there could not have been a conflict of interest in his role on the PAC last September, since he did not himself know that he had an Ansbacher Cayman account until November when he was contacted by the Moriarty tribunal. Such a lack of knowledge would seem to limit his culpability in failing to disclose an interest in a matter that was the subject of the committee's investigations. While it would not answer the broader legal and ethical questions about his conduct, it would at least mitigate the political damage.

But there are two obvious problems with Denis Foley's claim that he did not know he had an Ansbacher Cayman account until last November. The most glaring arises from Mr Foley's own statement to the Moriarty tribunal, in which he places an awareness of the Ansbacher connection six months earlier. In May 1999, he told the tribunal, he received statements relating to the account from the banker Padraig Collery. These statements contained explicit references to Ansbacher.

Secondly, it is hard to imagine that a public representative with even a passing knowledge of current affairs would not have smelled something fishy about his investments with Des Traynor long before last year. Denis Foley had dealt directly with Des Traynor as far back as 1975, when he was approached about making an investment for a "good return". He had received slips of paper indicating that his money was growing at an extraordinarily rapid rate. And after the death of Des Traynor he dealt with his successor, Padraig Collery.

At least after the spring of 1997 it did not take a mathematical genius to figure out that Des Traynor plus Guinness & Mahon plus slips of paper plus "a good return" plus Padraig Collery equalled Ansbacher Cayman.

At that stage the McCracken tribunal on payments to politicians was laying bare the workings of the scheme. Its report, published in August 1997, contained more than enough detail of how it worked and what its political implications were for anyone involved with Traynor and Collery to begin, at the very least, to suspect that their own money was in the Cayman Islands.

Even assuming that Mr Foley did not make any of these connections, he should have been aware that holding any kind of offshore account, whether through Ansbacher Cayman, or the "Click Investments" he says he believed he was involved with, was a very bad idea for a public representative.

The McCracken report spelled out with great clarity the damage that this kind of secret offshore dealing could do to democratic politics. It stressed the implications for public confidence in the political system of politicians holding offshore accounts.

The report said there were dangers that an office-holder involved in illegal dealings might be subject to "all kinds of pressure" from those who knew of his involvement. Mr Justice McCracken described as "most damaging" the "public perception that a person" in high office "was able to ignore, and indeed cynically evade, both the taxation and exchange control laws of the State with impunity . . . if such a person can behave in this way without serious sanctions being imposed, it becomes very difficult to condemn others who similarly flout the law."

The judge also pointed up the problems that the Ansbacher scheme and the payments to Michael Lowry and Charles Haughey posed for the political system. He pointed in particular to the weaknesses of the disclosure mechanisms in the Ethics in Public Office Act and the Electoral Act.

Politicians holding offshore accounts could, he suggested, successfully hide payments made to them. Such payments could be "made offshore and in a manner veiled in secrecy in an attempt to ensure that they would remain undiscovered". If, he added, "a member of either House of the Oireachtas is going to become involved in such [secret offshore] operations, then that member will almost certainly not comply with his or her obligations to register the payments."

And assuming that he read the report, Denis Foley would also have been aware of Mr Justice McCracken's recommendation that politicians failing to make full and accurate statements of their financial interests should be dealt with most severely.

"Firstly, the making of a false declaration of interest should be a criminal offence, and not merely dealt with internally by the House of the Oireachtas concerned. Secondly, consideration should be given to some form of legislation which would provide that any person found guilty of an offence under the Ethics in Public Office Act would be ineligible to become a member of either House in the future, either for a limited period or permanently."

If he stopped to wonder about his own investments with Des Traynor in the light of these most serious proposals, Denis Foley would also have been faced with a conflict of interest when the Dail debated that report and the establishment of the Moriarty tribunal in September 1997. As a member of the Dail Denis Foley was required to consider an issue in which he had a direct stake - whether or not the Moriarty tribunal should have a wide remit to investigate the Ansbacher deposits.

The Government proposed to give Moriarty a very limited remit in relation to the Ansbacher deposits. A Labour amendment proposed to widen the brief so that the tribunal could establish the names of all those who held such accounts. Denis Foley was part of the Government majority that voted to defeat this amendment.

What is clear at this stage is that, for all the talk of a new era of "openness, transparency and accountability" in the political system, the process of reform has not yet gone far enough.

The fallout from the beef tribunal, the passage of ethics legislation and the shock to the system provided by revelations about Charles Haughey and Michael Lowry should have been enough to change the climate once and for all. Yet, through all the dramatic revelations of the last four years, the deputy chairman of the Dail committee that seeks to ensure accountability in the system was sitting on his own secrets.

Mr Justice McCracken's recommendations for much harsher penalties for errant politicians were ignored at a cost.