THE MAHON AND MORIARTY TRIBUNAL REPORTS – HOW WAS IT ALLOWED TO HAPPEN: WHY DID NO ONE SHOUT STOP?

THE MAHON AND MORIARTY TRIBUNAL REPORTS – HOW WAS IT ALLOWED TO HAPPEN: WHY DID NO ONE SHOUT STOP?

Michael Smith, Editor, Village Magazine, former Chair of An Taisce

Summary

• Shouting stop was difficult.

• For historical and cultural reasons we in Ireland are too focused on the short-term and not very good with rules. 

• The same anti-regulation, anti-planning syndrome that caused the tribunals and bad planning caused the property bubble and the banking excesses.

• We don’t hear enough about the common good, even now.

• Implementation of the recommendations of Moriarty and Mahon is patchy.

• The government is pursuing progressive legislation on whistle blowing and lobbying.

• It is not clear if the proposed Planning Regulator will have teeth.

• We still have bad planning. 

• Civil service maladministration facilitated securing of the mobile licence for Denis O’Brien’s ESAT.

• The Mahon Tribunal conclusions focused on easy targets, especially retired politicians, and simply failed to report on much of the evidence it heard, especially if it was not corroborated by Frank Dunlop.

• Much of what happened at the tribunals could happen again. An Taoiseach hasn’t yet even accepted the Moriarty findings. Policy is focused on short-term economics to the detriment of long-term social and environmental goals. Governmental attitudes to bogs, septic tanks and climate change are scandalous.

 • Too many white-collar criminals get away with it because the prosecuting agencies are geared primarily to deal with shoplifters, not white-collar criminals.

WHY NO-ONE SHOUTED STOP
MY EXPERIENCE

Upon reflection I thought my own experience over the last twenty years would be of interest because I think I did associate with people who did see what was going on and try to shout stop albeit ineffectually and usually humiliatingly.

I remember Bertie Ahern, on the couple of occasions I met him, used to look at me crookedly and asked if I was still ‘battlin’ away’.

Battlin’ was difficult and unpleasant and no-one really wanted to know – to share the joke.  In fact the joke seemed to be on you. For example, an early effort was when I published a leaflet in the name of CHIP in 1991 called ‘Politicans on the fiddle: vote them out’.

That was some time before Judge Mahon recognized corruption was endemic and systemic at every political level. We published leaflets outlining how councillors were dodgily changing their minds on rezonings, asking people to call them about it.

In 1995 I was involved with an initiative to offer a reward for planning corruption that led to the Mahon Tribunal.

I transferred the contents of the PD skip with all their financial records to the Sunday Business Post, and indeed later on I also transferred Liam Lawlor’s tax return to the Sunday Business Post. I presented a Worse Ireland award to AIB in 1995 while they were presenting the Better Ireland award in the next room.  I unsuccessfully appealed Michael Lowry’s Dunnes-funded extension in 1997, and successfully appealed Mary McAleese’s holiday home. I tried to crucify Treasury Holdings in the courts in 1997 because they were flouting European law and planning norms, and buccaneering over the City of Dublin including  rigging auctions and threatening to run people out of town.  I made a complaint to the Standards in Public Office Commission about Seanie Fitzpatrick’s Docklands conflicts of interest when he was still lording it around town in 1997, which led him to say he was the victim of media McCarthyism. It was found against me on a technicality. I put my name to over 1,000 objections to rubbish developments up and down the country including much one-off housing.  Often I’d meet them, clever architects in black polo necks, attractive young couples, businessmen who towards the end of the boom always somehow wanted to give something back.  Nearly always the development would be shocking. Apart ironically from Docklands in Dublin, Ireland didn’t really DO good, sustainable development.  I tried to get the Meath County Development Plan struck down in the High Court for allowing sprawl of Dublin.  I was involved with an initiative that organized someone to fly around the Bord Pleanála Chamber and exit by the window when it was considering the mad Terminal Two Dublin Airport extension. I even once had Dick Roche trailed by someone dressed up as a two-sided cockroach – Dick Roche: Cock Roche. But it didn’t really do me or anyone else much good. Because culture trumps everything else and we were – as a country – deliberately, even professionally, in rape mode.

I was there for the early nineties corruption. Frank Dunlop once read the Irish Times ostentatiously in my face while I delivered myself, in opposition to his clients at a Bord Pleanála hearing. Nasty.

And I was in Conway’s on Parnell St more than twenty years ago when councillors from Dublin County Council used to retire for a few pints with Frank Dunlop and a couple of brown envelopes or bags.

Indeed I once had the pleasure of addressing the FF group on the old corrupt county council – one evening in Conway’s pub in 1991 – on the subject of good planning in the county. I banged on about how the so-called new towns – Tallaght, Blanchardstown and Lucan-Clondalkin – should be finished before the County looked at starting major new suburbs, while the Fianna Fáilers scoffed mariettas and chattered away, like in a crèche, really.  After I’d droned on worthily for ten minutes about the common good, the ERDO report and reinforcing the city centre while councillors shouted among themselves and yawned, Councillor Betty Coffey intervened to announce that her party colleagues ‘got my drift’ and I was ushered out still shouting about the ERDO report. 

In 1991, I attended a meeting about the Carrickmines Valley. At the end of the meeting, on its periphery, I encountered Betty Coffey who was a leading councillor for Fianna Fáil.  I had a pleasant if dull chat with her about zoning, though I think she was mainly interested in how suspiciously young I was, and then she said I should talk to Fianna Fáil’s planning expert.  She beckoned to the shadows. Liam Lawlor emerged and urbanely said he was not in favour of rezoning the valley and had voted against the wholesale rezoning of the valley. The strange thing was that he was not on the Council at the time, having lost his seat in the local election, and he had no obvious reason to be at an obscure meeting in the distant southern suburbs.  He seemed nevertheless to be fulfilling some sort of a role politically. Fifteen years later it emerged FF’s  planning expert had a financial involvement in the controversial Jackson Way site in the Carrickimines Valley over which Dunlop was jailed and several councillors have been charged,  though certainly he declared no such interests to me when I spoke to him that day so long ago in a foreign land.  That’s how it was done.

On another occasion when I was campaigning against rezoning of the Carrickmines valley/Cherrywood, I had a row with Councillor Olivia Mitchell who claimed we were engineering a great many telephone calls to her. We were indeed promoting late-night calls as that seemed to be the only time that hard-working councillors could be reached.  Immediately after the vote, in the Council office, I caught her hugging one of the developers whose scheme she changed her mind to support.  I said “oh, Kissy, Kissy with one of the developers” and she said “Lucky you don’t have a camera”.  I sort of felt that councillors should not be so passionate about the interests of developers. Subsequently it emerged she’d taken money from the developers before changing her mind.  Twenty years later FG has forgiven her, though Mahon said her voting was “inappropriate”.

I spent a year of my life way back then campaigning against what the Mahon Tribunal in the end accepted was the corrupt rezoning of the Carrickmines Valley, primarily for Monarch Properties.  We had leaflets and banners, and were like flying columns countering Monarch’s expensive propaganda. The developers there spent £800,000 on their campaign, much of it on Frank Dunlop and his largesse.  Every time we moved they’d attack us and vice versa.

Local residents went through all the democratic process, and through sheer force of money they lost – to forces they could not affect. When we lost we were distraught.  We lost a corrupt vote. We tried everything but it was clear we needed to go beyond the usual process to blow up the system of worthy letters to Ministers, ignored following unfulfilled promises to revert. We offered a reward for information about planning corruption.

We – Colm Mac Eochaidh and I – had to do it through a Newry solicitor as we wanted to remain anonymous and no solicitors down here would touch it.  Eventually we had a flow of information. Some of it was rubbish – where Shergar was allegedly buried – but some of it clearly was not, which we drip fed to journalists, led by Frank Connolly. James Gogarty came to us with allegations about paying money to Ray Burke, the then Minister for Foreign Affairs. Gogarty didn’t want to talk to the press because he felt humiliated by his dealings with the Irish Times. He was obsessed with his pension, very dull really, and we had to persuade him that in order to embarrass his employer about how his pension had been treated he had to tell his whole story of corruption to the press.  That was a battle. 

Anyway the drip feed week after week, during the silly season of summer 1995, corroded the body politic, which in the end panicked.  Ray Burke resigned because the allegations were true. The planning tribunal was instigated to look into the allegations and in the end I suppose it led to Bertie’s resignation too.  Though it cost far too much – probably 200-250m.  And it’s done nothing to stop dodgy planning. And if you check out Cherrywood now on the Bray dual-carriageway, the once happy valley is now a moonscape.

Some years later I became chairman of An Taisce which purported to take the public interest stance in planning matters. What I discovered was that, then and now, democratically driven local authority development plans and national plans such as the spatial strategy, created by politicians, were essays in hypocrisy as they were totally flouted by councillors acting as private representatives – as opposed to public representatives – to vested interests of all sorts; from larger developers to one-off house builders.  If you owned property and shouted loud enough you could get councillors to lean on officials to get what you wanted in the frenzy of short-termist greed that was our own tiger. For example, Spencer Dock, the Carlton site on O’Connell St, the children’s hospital, and Liberty Hall got permission or approval from the local authority even though the democratically-agreed development plan did not allow them.  Development plan policy is usually against one-off housing even though in many counties sixty or seventy percent of housing is built that way. But officials did what they were told by developers. It was shout power – for developers big and small – in the face of any vision of a planned common good, in the face of democratically-agreed policy, in the face of democracy, in the face of policy.

And An Taisce, which just championed the idea of following plans, of denser communities, especially in towns outside of Dublin so Dublin would not sprawl, got hammered and called the Ku Klux Klan.  Which was funny for the first few years and until you look at the legacy – of nothing you’d want really.  No new parks, playgrounds, imaginative civic spaces and new places to go, no bold new suburbs showing we could do what they did in Scandinavia but, since we had more money, better.  Instead we have a legacy of what you’d expect if Bertie had planned and built it himself.

Next I’m going to look at History and how it has led to our distorted sense of the common good; and who’s getting in the way now.

Thirdly, I’ll briefly look at the recommendations of Moriarty and Mahon, whether they’re being implemented and who isn’t being prosecuted.


WHY DID IT HAPPEN?
IRELAND’S HISTORY ACCOUNTS FOR CORRUPTION

Our history is of Colonisation leading, among other things, to rule-breaking and demonisation of whistleblowers; famine leading to lack of interest in the long-term, lack of interest in the environment and a view that planning is  a luxury;  the inflation of the role of the big man – from Haughey through Ahern to Lowry; an obsession with Civil War politics and then the North to the detriment of vision or public interest, on who ruled not how they ruled; an interest in culture and the imagination to the detriment of the truth in politics; Catholic notions of sin and redemption meaning venality was literally forgivable; and the elevation of sins of sexuality to the downgrading of sins of avarice or against the common good. So – to be trite – the problem is History: that is to say famine, colony, and church.

Anyway, maybe that’s why it was allowed to happen. 

WHAT HAPPENED, WHO ALLOWED IT, WHO PROMOTED IT AND WHAT IS HAPPENING NOW?

So what happened? We need to agree what happened?  Because I think what generated Mahon and Moriarty generated our wider collapse, including economic collapse in the end; all part of the Ireland syndrome generated by our generation.

I think that our generation in Ireland generated a once-in-a-century boom and allowed it to be hijacked by the corrupt and the greedy pursuing no particular vision, with no regard for the long-term.  Our political classes offered no attractive vision of society and did not see the downturn coming. Fianna Fáil ruled the boom on dodginess, short-termism and neo-liberalism dressed up as ‘socialism’.  Driven by their own bloated lifestyles, they behaved as if money was all that mattered, there was little need for regulation or planning and there would never be a tomorrow. Opposition parties did not do their job of skeptically assessing our tax base, our banks and our property sector.  Our political parties evolved into interchangeability, increased the inequality gaps in Irish society and lost any sense of ideology or vision so that even the Labour Party supported income tax cuts, and even the Green Party manifested the preference for rhetoric over action that had always characterised their unlikely political brethren in Fianna Fáil.

WHO ALLOWED IT?

And who allowed it to happen? Politicians, including people whom history seems likely to judge as beyond reproach, like Garret Fitzgerald, and grandees like Derry Hussey, the gardai, the media, regulators of all sorts – from the planning authorities to the banking regulator to the civil servants who worked on the ESAT fourth mobile-phone licence.

WHO PROMOTED IT?

And the people who promoted it, rather than merely allowing it, were the sort of people who control FF and FG, the classes that tolerated Haughey and Lowry and still tolerate dodgy councillors who serve the private interest, the sort of people who have tax-driven investments or who might flog a one-off house even though they got permission only for family use, who lost the run of themselves in the boom. Think Quinn Family.

But the electorate of course let itself down by ever voting for Haughey, and in the case of Bertie at least by giving him his third term, though actually he never had enough vision or ideology to be appropriate as Taoiseach. There will be lots of people here who championed Haughey and Bertie.

A note on the programme for today outlines a reasonable analysis of our problems and possible solutions, but then announces that these matters will be debated by government ministers, members of the opposition, heads of industry, economists, political analysts and journalists. We shouldn’t carry on the discourse as if this society hasn’t failed.

WHAT IS HAPPENING NOW?

But the point really is that most of all it could happen again, is happening again, because  the culture passed down to us by history hasn’t changed. Admittedly the omerta surrounding Haughey’s wealth wouldn’t survive these days, and Liam Lawlor would not be appointed to vice-chair of the Dáil ethics committee. But look at the culture of the Quinn Family, at the impunity of Seanie Fitz, the Bailey Brothers, Bertie and Ben Dunne, at the focus on the economy to the detriment of the social side and the environmental side, at judicial appointments, the indulgence of Denis O’Brien and Michael Lowry, that the Taoiseach hasn’t yet accepted the Moriarty findings, at the quality of planning decisions, the treatment of bogs and septic tanks. Bertie Ahern batting for the Star from behind the contents of a refrigerator and Celia Larkin pontificating on the issues of the day in the Sunday Independent, there is an overwhelming mainstream lack of interest in growing inequalityThe national discourse is erratic and unanalytical as evidenced by the antipathy to property taxes. And if they can’t even get these things right, what chance is there they’ll deal with climate change?

Nobody left or right really cares about vision and too many want to go back to the way things were in the boom.  Nobody really believes in the public interest.

COMMON GOOD

I want to talk a little about the common good.  Now it seems to me that we could agree that the common good involves promoting competent people who are not obsessed with themselves and who are economically literate; eradicating nepotism and corruption; encouraging equality of opportunity and sustainability with due regard to the disadvantaged and the future. Now who could disagree with that?

Practically, the answer is for citizens to be educated, starting in school, to choose leaders at every level not in their own interests but in those of the society they wish for.

THE TRIBUNALS

MORIARTY: MEDIA FAILED TO FOCUS ON CIVIL SERVICE

Focusing on O’Brien and Lowry, the media missed much of Moriarty but in fact I think much of what happened was due to the civil service.

Perhaps because Moriarty had to re-write a small section of his report after an earlier draft was apparently unsustainably critical of civil servants, the media also downplayed the extraordinary findings on how senior civil servants in the then Department of Communications handled the tendering process.

Its Secretary General was not concerned by Lowry’s failure to keep the normal distance from O’Brien:  the Tribunal effectively rejected most of the Secretary General’s account on this, referring at times to his evidence as “bizarre”, “without foundation in fact” and “not reliable.

In the first Moriarty report in 1997 Judge Moriarty also refused to accept this gentleman’s evidence about his time as head of the Department of Energy relating to Glen Ding Woods in Co Wicklow. 

I would say one of the ways Moriarty arose was because of negligent public servants, with a pro-Ministerial deference and a fetish for dynamic businessmen.

MAHON: FOCUSED ON EASY TARGETS

It was never really reasonable to rely on the sort of minds that took 15 years and up to €300m to deal with an ‘urgent’ examination of corruption in one county to then produce a radical and dynamic report.

The Mahon Report nails easy targets among the rezoners: four dead dinosaurs (three FF, one FG), five red-toothed, long-sidelined rezoning machines (three FF and two FG) and, well, Olivia Mitchell (Olivia was done for inappropriate behaviour in one case only).

But in the rezoning that I was opposing 20 years ago – Cherrywood near Cabinteely in Co Dublin – as with most of the rezonings, the findings fall short of implicating anyone who still could be described as the political establishment, though certainly it nails the corrupt developers behind the scheme – and dodgy Frank Dunlop.

In 1993 the residents’ group I was involved with published a leaflet wondering why local councillors, who voted for Cherrywood in 1993, consigning the beauty-spot to concrete, had voted against it in 1992, with no change of circumstances. Six of them.

We said changing their minds was suspicious in 1993. That was before we knew that 60 politicians and community groups took money from the developer, Monarch Properties, which disbursed £167,000 in cheques and £161,000 in untraced cash.  This was before several councillors were charged with corruption concerning the adjoining ‘Jackson Way’ site.  Before Frank Dunlop (jailed over Jackson Way) who had taken over lobbying for the Cherrywood rezoning in late 1992, confessed himself a crook.  Before we knew that Albert Reynolds had received a £5,000 donation that referred to the positive role of FF councillors in facilitating the rezoning. And before it was known John Bruton received £2,500 from Monarch for Fine Gael in between the crucial votes.  Nine out of the 12 FG councillors who would talk to their party’s  internal Inquiry in 2000 had received money from Monarch or Frank Dunlop (or both) in the 1991-1993 period when I was concerned with the Cherrywood vote. The tribunal didn’t even attempt to ask the councillors why they changed their minds after receiving donations from Dunlop or Monarch, though that didn’t stop it hauling them in and asking them endless other questions. The report almost entirely omits conclusions on this endless stream of dodgy evidence. Someone needs to do a survey on what percentage of the evidence heard by the tribunal was never resolved by it at all.

And we heard nothing about life beyond the Red Cow, though Phil Hogan’s civil servants implausibly seem to think we’ve no reason for concern, less still investigation.

TRIBUNALS: RECOMMENDATIONS AND POTENTIAL FOR PROSECUTIONS

I want to turn to the outcome of the tribunals:  recommendations and prosecutions.

Moriarty Recommendations
The Government has argued some of the major recommendations of Moriarty have been addressed, including reducing corporate donations, publishing draft whistleblower legislation, and starting the process to regulate lobbyists. The independence of the Revenue Commissioners has been placed on a statutory basis, the leader’s allowance regulated and the Central Bank’s regulatory powers have been enhanced.

Of the Moriarty recommendations it is fair to say government is not going as far as it wanted on donations to political parties.

Mahon recommendations
Almost half of the 64 recommendations made by the tribunal have already, the government claims, been implemented or are in the process of being implemented.  29 of the 64 recommendations made by the tribunal had been implemented, 14 would be implemented and 18 recommendations remained under consideration. The tribunal rightly recommends that both the National Development Plan and the National Spatial Strategy be placed on a statutory footing. It is not clear if this has been accepted by government or indeed what it means (statutes can be aspirational); or whether Regional Authorities will be directly elected and held accountable for implementation of RPGs which they currently flout on the grandest scale imaginable. Government is running with the recommendation that where the elected members disagree with the advice of the professional planners and intend to issue a direction to the Manager to grant planning permission, they should be required to state their reasons for doing so. In addition, Mahon recommended that both that advice and those reasons should be sent to An Bord Pleanála which should have the power to veto that direction. The Department and media seem to have lost sight of that recommendation which seems to me to be crucial. The tribunal recommends that the Minister for the Environment’s ability to give directions to Regional Authorities and Local Planning Authorities should be entrusted to a Planning Regulator. Worryingly Jan O’Sullivan is to consult the Dáil committee which will probably be loth to facilitate independent intervention in county councils’ planning decisions. Will there be a role for An Bord Pleanála, the Ombudsman or a completely new independent office?   What are the limits of the regulator’s powers vis-à-vis the planning process and elected members? A number of recommendations relating to conflicts of interest have not been adopted by the government, which says they are under consideration.

It is good the Department is currently developing draft heads of a Bill on lobbying.

The introduction of comprehensive whistleblower protection legislation has got as far as publication of draft heads of the protected disclosures in the public interest Bill earlier this year, and the draft is very encouraging.

On ethics, more excitingly Brendan Howlin said he had decided to engage in a full review of how the existing legislative framework for ethics could be reformed. This would develop “a single, comprehensive and overarching framework” grounded on a clear and comprehensive set of principles. This considerable undertaking would cross all departments and sectors.

PROSECUTIONS

Prosecutions of tribunal villains have been very disappointing, due primarily to problems in the culture and funding of law enforcement agencies including the Director of Corporate Enforcement, the Competition Authority, the Criminal Assets Bureau, and the Garda “Fraud Squad”.

The only convictions related to the drawn-out tribunals have been of Ray Burke for tax evasion, George Redmond (eventually overturned) and Frank Dunlop for corruption, and Liam Cosgrave for offences under the ethics acts; as well as of Liam Lawlor for blatant obstruction of the Planning Tribunal.  More are needed.

SO IN SYNOPSIS

For cultural reasons we’re too focused on the short-term and not very good with rules.  We don’t hear enough about the common good, even now.  Implementation of the recommendations of Moriarty and Mahon is patchy.  We still have bad planning.  Much of what happened at the tribunals could happen again.  Too many white-collar criminals get away with it because the prosecuting agencies are geared primarily to deal with shoplifters, not white-collar criminals.

_____________

 

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