HEAD 2 HEAD: YESJohn Devitt says the tribunals have both lifted the lid on systemic sleaze and recouped more money for the State than they have cost. NOPaul Cullen says the tribunal lawyers have raked in huge sums of cash without really changing the political culture they are investigating.
Frank Dunlop had good reason in 1997 to believe that the planning tribunal would not find anything on corrupt politicians and local politics. After all, previous tribunals and investigations had come up with nothing. What Dunlop and his acquaintances had not counted on was that Mr Justice Flood and Judge Alan Mahon would do a pretty good job of lifting the lid on systemic sleaze and criminality in Irish politics.
Over a 10-year period, the planning and Moriarty tribunals exposed what we suspected but couldn't know for sure: corruption and influence peddling was systemic in local government and political funding. They uncovered what the media was unable to do for fear of libel action. They showed how some senior politicians were in the back pockets of business and that much of the country was governed for the benefit of vested interests instead of the general public.
Instead of praising them for highlighting the problem, the tribunals have been scapegoated by some commentators and politicians for bringing politics into disrepute and costing the State a fortune.
Of course, a better deal on fees might have been struck between the State and tribunal counsel, and tighter terms of reference defined. Much of what we now know about corruption might also have been uncovered by the media or a short, focused commission of inquiry. The fact that it was not may be something of a blessing in disguise.
While evidence presented at the tribunals cannot be directly used in criminal prosecutions against alleged wrongdoers, the evidence can be used to launch civil actions. Such cases require a much lower burden of proof, with verdicts based on the balance of probabilities rather than on proof beyond all reasonable doubt.
The prospect of pursuing civil prosecutions arising from evidence given at the tribunals was given a boost in 2005, when the Government passed the Proceeds of Crime (Amendment) Act. This law allows the Criminal Assets Bureau (Cab) to confiscate any wealth or assets believed to have been acquired through a bribe to a public official or politician.
This was used for the first time when the Cab launched proceedings in 2006 against Jackson Way Properties to freeze 17 acres of land near Dublin. The land is believed to have been rezoned from agricultural to industrial use as a result of bribes paid by Frank Dunlop to local politicians in 1997. The rezoning led to an increase in the value of the land of around €53 million which could now be seized by the State.
If the Cab prosecution is successful, it will have recouped almost the entire running costs of the planning tribunal in one action alone and dwarf the amount secured against organised criminals.
Even greater financial savings to the State arising from the tribunals have been identified by Frank Daly, chairman of the Revenue Commissioners. Daly stated in 2006 that the revelations at the tribunals, Dirt and Ansbacher inquiries have already helped the State recover over €2 billion in evaded tax from offshore and domestic accounts. That is twice the cost of all the tribunals and inquiries combined.
According to Daly, the savings were gained through increased powers of inspection for the Revenue and through a change in the "climate" in the State in relation to tax evasion. The long-term social and economic benefits speak for themselves.
Nevertheless, and in spite of how much money the tribunals have saved the country, they will be unfairly judged on whether they have changed the climate of corruption in Ireland. On the basis of Government decisions over the past four years, the forecast is not good.
The Freedom of Information Act has been emasculated, political funding laws still allow for most political donations to remain unaccounted for, and most local authorities still do not have the required anti-corruption systems in place. Meanwhile, the Government continues to drag its feet on the ratification of the UN Convention against Corruption.
Political will is required to turn things around and it is here that all of us, not just the tribunals, have a part to play. Politicians from all sides need to place transparency in government and the prevention of corruption firmly on the political agenda. The clergy must speak out more for accountability and open government. Civil society, trade unions and business leaders, who have been silent on this issue for decades, need to take a stand. And finally, we - the general public - should demand integrity in government as well as an equitable, prosperous society. Tribunal evidence shows we can't have one without the other.
In the half-day it takes to write this article, the planning tribunal would have clocked up costs of about €45,000. At some time in the future - I can't say when, because no-one knows the date - further bills will come in for such a morning's work, and these could be anywhere between €100,000 and €450,000. Not bad for a morning's toil (theirs, need I say, not mine).
I can't be exact about the cost of the tribunal, because no-one knows how many third parties will claim their legal fees from the tribunal and for what amount. So much about the workings and cost of the planning tribunal, and so many other tribunals, is shrouded in mystery, years after they were set up, that it is impossible to assess with precision the value for money they represent.
That doesn't mean we can't make value judgments about the performance of individual tribunals, as well as commenting generally on the structures and costing of all inquiries.
Does a scandal grow or diminish by not going away? If it was a scandal a decade ago that senior counsel at the tribunals were being paid up to €2,500 a day, what is it today - an even greater scandal or a bore? Is there really no price attached to seeking the truth, no matter how inefficiently? Lawyers in the private sector are, or course, earning large sums from their clients, but usually economies of scale apply and barristers quoting for a long-running job will reduce their quotes accordingly to reflect the greater security of income that applies. No such provision was applied at the tribunals, even for new staff, and so their billing clocks have spun around merrily at the same lively pace for the past 10 years.
Ministers have come and gone, and huffed and puffed, and still the high fees are in place. Charlie McCreevy trumpeted his scheme to curb the daily rates paid to barristers in 2004, but hightailed it to Brussels long before the inevitable unravelling.
Michael McDowell became outraged about the cost of the tribunals before the last election but not convincingly enough to ensure he held on to his seat. Measures are in place for reduced fees for future inquiries but with the tribunal model so debased, it is unlikely we'll see many of these.
Of course, high fees at the tribunals are only part of a wider problem arising from the excessive power of the legal profession, which has been plundering public funds for years.
Is it any wonder that Frank Dunlop and others with a less than distinguished record have decided to forge new careers in the law?
High fees are only part of the problem with tribunals. By their nature, these legally based inquiries are ill-suited to investigate many of the problems which have been sent their way. Lawyers have one trump power - superior access to the law - but they lack the technical and specialised skills needed to grapple with corruption.
The tribunals have clung stubbornly to legal tradition - the primacy of evidence, the short working days, the long holidays - instead of developing a multi-disciplinary approach.
They appear to have little institutional memory and few surprises up their sleeve; appearing in the witness box in Dublin Castle is still a daunting experience but not one that has cured many of amnesia.
At times, the people running tribunals appear distant and inept. It was naive at best for the planning tribunal to circulate Bertie Ahern's documentation to third parties before the election. The inquiry then scheduled hearings during the campaign, only to cancel them at the first complaint. There will be no hearings into Fitzwilton's payment to Ray Burke thanks to the tribunal failing to comply with its terms of reference.
The effective investigation of corruption needs to be carried out by a standing commission of lawyers, accountants, gardaí and other relevant professionals with adequate powers to snare those involved in the crime. We'll get such a body some time, but only after further scandal, when it's too late.
I'd like to think that the tribunals have changed things, but I don't believe they have. The only people lambasted in tribunal reports are those - Charles Haughey, Ray Burke, George Redmond - who had already left public life.
The culture of corruption uncovered in a number of inquiries hasn't gone away; it has only taken on new forms. In planning, for example, it has moved out of Dublin and into other counties; yet the planning tribunal will finish next year without ever having conducted an investigation outside the capital.
Those who rally to the defence of the tribunals these days usually have a political motive. Bertie Ahern, we are told, is suffering death by a thousand tribunal cuts. In my experience, though, the fuss that surrounds high-profile appearance in the witness box dies away quickly, leaving little or no longer-term effect. It could be different this time with the Taoiseach, but I wouldn't be surprised if it wasn't.
With time, we will come to look on the tribunal era as just another excess of the Celtic Tiger. We had the money and we blew it; we all got a laugh, a few snippets of truth and the lawyers made a packet.
Paul Cullen is consumer affairs correspondent of The Irish Times. He previously covered the planning tribunal for this newspaper for an extended period.