Public is well served by Haughey judgment

Charles Haughey will be 72 this September and since his most recent fall from a horse he is looking every day of his age. It is hard not to sympathise with him in the travails he is undergoing, however much he has brought all this upon himself through a life of financial and political excess and through the deceit of the last tribunal he was brought before.

There is also an irony that his reputation is now so reviled just at the time when perhaps his most outstanding political initiative, the start of the peace process that roped the republican movement into constitutional politics, has come spectacularly to fruition. But his current efforts to escape the consequences of his past excesses and recent deceits deserved to fail as they did in the High Court yesterday. The public interest is well served by the judgment delivered by Mr Justice Geoghegan.

Mr Haughey was of the view that the McCracken tribunal found no impropriety on his part in his accepting massive financial gifts (£1.3million) from Ben Dunne while he was Taoiseach and that there was nothing justifying the establishment of a new tribunal to inquire further into his affairs.

How did he ignore that part of the McCracken tribunal report which stated: "The tribunal considers it quite unacceptable that Mr Charles Haughey, or indeed any member of the Oireachtas, should receive personal gifts of this nature [the Ben Dunne payments], particularly from businessmen within the State".

It is even more unacceptable that Mr Haughey's whole lifestyle should be dependent upon such gifts, as would appear to be the case. If such gifts were to be permissible, the potential for bribery and corruption would be enormous.

"By allowing himself to be put in a position of dependency, Mr Charles Haughey failed in his obligations to his constituents and to the citizens of this State and indeed has devalued some of the undoubtedly valuable work which he did while in office."

Mr Justice Geoghegan said yesterday that given the findings of the McCracken tribunal (he did not refer to the deceits) "it is bordering on the absurd to suggest that Mr Haughey is being unfairly or unconstitutionally discriminated against. Some invasion of Mr Haughey's constitutional rights, such as his right to privacy, etc., is justified having regard to the legitimate public concern."

Yesterday's judgment was a useful clarification of the role and constitutionality of tribunals and of the procedures they should follow in their investigations. The judgment may well foreshorten not just the Moriarty tribunal, from which it arose, but also the Flood tribunal on alleged planning irregularities. The latter is threatened by a plethora of legal actions, which might have delayed interminably its investigations and public hearings, but the Geoghegan judgment may have pre-empted many of these.

There is one disappointing issue arising from the Geoghegan judgment of yesterday. It concerns the scope of the Moriarty tribunal's inquiries into Mr Haughey's finances. The judge said he would have grave doubts "as to the constitutional legitimacy" of any inquiry into Mr Haughey's finances that would stretch back beyond 1974.

But in many ways Mr Haughey did the damage before 1974. It was during the 1960s while he held public office (he was a minister throughout that decade) that he amassed unaccountable wealth. It was during this period that he moved first into a massive house in Raheny, from a modest house in the same area. It was during the 1960s also that he moved from that massive house to the mansion at Kinsealy. How was it done? Why should inquiry into that now be deemed unconstitutional?

A deeper question than any in the case adjudicated on yesterday arises in relation to tribunals, and it is: why do we need tribunals at all?

Why, instead of diverting judges from their judicial functions, does the Oireachtas not undertake its own investigations? It would have no less power than the tribunals and no less freedom to inquire into whatever it thought appropriate, provided only that it acted in accordance with constitutional justice.

The reason this does not happen, of course, is that the Oireachtas as an independent arm of government is dead. Nobody seriously believes that the Dail, for instance, is capable of inquiring fairly and independently into the actions of the executive arm of government, although this is, manifestly, its constitutional role. The theory is that the government of the day is under the control of the Dail. The reality is that the Dail of the day is under the control of the government.

If the Dail acted as it should, there would have been no need for the tribunals of the last several years although, given the demands of constitutional justice as laid down by the courts, lawyers would have no less a role in Dail investigations and the costs would hardly have been any less either.

The present subservience of the Dail to the government might indeed be unconstitutional, being an abrogation of the separation of powers, which supposedly is fundamental to our constitutional structure. But it is hard to envisage how this could ever be challenged since our politics is not about the free interplay of ideas and the holding accountable of institutions of power, but of the crude exercise of power.

The impotence of the Dail is underlined by the hopeless inadequacy of the supports offered by our system to Dail deputies. Whenever there are announcements of all-too-modest increments in the allowances available to TDs to enable them to do their work, the media invariably present this in terms of another scam. Yesterday's Irish Independent headline and front-page story was an example: "McCreevy gives TDs a bigger increase in perks".

The fact is that the Dail could not, even if it wished, hold the Government and other executive institutions of power accountable, given the resources at its disposal. Members would need researchers, secretarial back-up and access to legal and accountancy expertise simply to do the basics of their job. But if that were even mooted there would be the kind of ignorant populist response from the media and opportunist politicians that, for instance, the introduction of programme managers caused.

This is an argument independent of the pay appropriate to public representatives, and I hope to return to that theme next week. Incidentally, in the course of Mr Haughey's High Court application he was represented by three senior counsel and three junior, plus Ivor Fitzpatrick, solicitors. His own costs in this action alone must run well in excess of £100,000, and now he will be obliged to pay half the State's costs (unless the decision is reversed on appeal by the Supreme Court). How is he financing this? Do we need another tribunal to find that out?