Report's zeal impresses, but proposals disappoint

It is not just a good report, it is a great report. The investigatory zeal and effectiveness were hugely impressive. But the recommendations were a disappointment.

The work of the McCracken tribunal was overwhelmingly to establish facts about alleged payments by Ben Dunne to politicians. Very little time was given to the examination and formulation of the recommendations the tribunal "thought fit". Not surprisingly, the recommendations are half-baked.

On the last day of the McCracken tribunal hearings in Dublin Castle - Monday, July 21st - counsel for Fianna Fail, Rory Brady SC, made a series of radical proposals for the reform of the funding of the political system and the enforcement of accountability in relation to that.

He identified the "primary deficiencies" in the Ethics in Public Office Act 1995 as twofold. First, the lack of disclosure requirements by persons other than politicians and public servants. Second, the absence of a vibrant and independent investigative agency.

He advocated the creation of an ethics commission, with powers of investigation. He proposed that third parties, such as bankers, accountants and other professionals, be required to make disclosure of any unusual or large financial transactions involving politicians or public servants. He proposed that it be made a criminal offence to fail to make such a disclosure.

For this to be effective, he suggested, on behalf of Fianna Fail, that such disclosure should be to an independent third party appointed by the Oireachtas and funded out of the public purse. Such person should have the same independence as a judge and should have powers of investigation and, ultimately, of prosecution.

He further recommended that members of Dail Eireann, the Seanad, local authorities and other statutory bodies be obliged, upon taking office, to produce a certificate from their tax accountant or adviser, stating that their tax affairs were in order. And each such person upon furnishing such a tax clearance certificate should be obliged to swear a statutory declaration to that effect - the making of a false statutory declaration is a criminal offence, punishable by fine or imprisonment.

Counsel for Fianna Fail made no proposals about the funding of the political system itself.

The tribunal rejected the more radical of Rory Brady's proposals. It observes timidly: "It may be that the measures in recent legislation do not go far enough." It goes on to dismiss the proposal to oblige bankers, accountants and other professional advisers to disclose any unusual or large financial transactions involving politicians or public servants. It says "the reality is that if there was such an obligation, it could only be imposed on advisers within the State and such provisions could easily be avoided by the politician or public servant concerned simply acting through advisers and banks outside the State".

But thereby forcing would-be corrupt politicians or public servants to seek advisers and banks outside the State would itself be deterrence to malpractice and, in any event, in many instances such large financial transactions would become known to banks and advisers within the State.

The tribunal also rejects the appointment of an ethics commissioner. The report says "the tribunal does not consider there would be sufficient justification for setting up a totally new office". There is no explanation offered for this observation, which is surprising given the factual conclusions of the tribunal. Instead, it proposes that "consideration" be given to extending the jurisdiction of the Ombudsman to supervise the finances of politicians and public servants. Given that the Ombudsman is already overloaded and the functions and powers of the office bear little resemblance to what would be required, the proposal is disappointing.

The tribunal does concur with the tax clearance proposal, accompanied by a statutory declaration. Again, lamely, it proposes that "consideration" should be given to a provision that would make persons guilty of an offence under the Ethics in Public Office Act ineligible for election to the Dail or the Seanad.

It concludes: "The tribunal does not consider it practical to prohibit all political contributions and rely solely on public funding of political parties. Indeed, to do so might give rise to serious constitutional difficulties."

The constitutional objection to the banning of private funding of political parties was first raised at the tribunal by Charles Haughey and echoed in his closing submissions, ironically, by the counsel for Fine Gael, Kevin Feeney SC. He claimed there was a constitutional right to contribute financially to political parties. He claimed, without citing any authority, "Our Constitution recognises that right".

He went on to argue that the effect of the McKenna judgment (the case involving the funding of one side in a referendum campaign) was that "the cost of funding the (election) campaigns and referenda campaigns now significantly falls on political parties".

The McKenna judgment necessarily implies no such thing. What it held was that the funding of one side in a referendum campaign disturbed the principle of equality before the law, which is central to our Constitution. As for the claim that the Constitution recognises the right of individuals to fund political parties, where does this come from? In his evidence, Charles Haughey correctly stated that the US Supreme Court had found that there was a right, associated with the guarantees under the First Amendment to free speech, to privately fund political parties. The landmark case in this area was Buckley v Valeo (1976), the judgments in which have been much criticised.

But is it really contended that there is a constitutional right for one person to fund one party, say to the tune of £20 million in the course of an election campaign, while other parties had to compete on funding of less than £250,000? It is a banality to observe that money on its own cannot win an election. The point is that money can give a huge advantage to one party over others and prejudice the political system in favour of people with money.

This is not because donors of political contributions will get favoured treatment - although obviously that is a factor. More significantly, it is that those parties that favour the interest of the rich will have an advantage over other parties and especially over parties that favour the interests of the poor.

It is difficult to see how there could be constitutional objection to a measure that would prohibit such prejudice in the political system and which undermines the equality that is at the heart of the Constitution. Of course, one cannot predict with certainty how the Supreme Court would decide such an issue but the spirit of the majority judgments in the McKenna case seem to suggest that such a measure would be found constitutional. It is a pity that Mr Justice Brian McCracken did not elaborate his view on this issue.