The evidence to the tribunal had revealed Mr Ben Dunne to be "an extraordinary man with a unique attitude to money", according to counsel for Fine Gael. Although the tribunal had focused on the
"unique contributions to Fine Gael by a unique man", this did not give a clear and full picture, said Mr Kevin Feeney SC.
It had been demonstrated beyond doubt that there had been no improper motives on the part of Fine Gael or any of its TDs in seeking contributions from the supermarket tycoon.
However, the manner in which payments had been made to Mr Haughey in relation to the issue of motive had shown "an absolute desire for no third-party scrutiny and no third-party knowledge", he said.
Even when three drafts totalling £210,000 had been handed to Mr Haughey, they were dealt with in a "secretive and unaccounted for manner".
The approach taken by Fine Gael to contributions from Mr Dunne was
"entirely different" from that taken by either Mr Haughey or Mr
Lowry.
Mr Feeney said the tribunal had unveiled three types of payments or political contributions which were fundamentally different.
The first was contributions to a political party and certain politicians, mainly Fine Gael, and to a lesser extent Fianna Fail, for political and election expenses made by Mr Dunne.
As far as Fine Gael was concerned, these payments had been accounted for in the standard accounts of the party, which were subject to full audit.
The second kind of payments were those made in "a private and unorthodox manner" to Mr Lowry and his company for work done for
Dunnes Stores, without any apparent compliance with the necessary and correct accounting procedures.
Lastly, there were the substantial direct and indirect payments to
Mr Haughey "for his exclusive personal use, paid in such a manner as to expressly avoid any disclosure or knowledge by any third party of such payments, and being subject to no accounting process or audit", he said.
"It is difficult to under-emphasise the entirely different nature and consequences of each of these different types or payment or contributions," said Mr Feeney.
The terms of reference had identified the scope and limitations of the tribunal. The tribunal had to work within the terms given to it, he said.
The limited nature of the tribunal had been one of its great strengths and it was necessary to congratulate the inquiry.
The strength of the tribunal in being able to deal with the matters before it in an efficient and expeditious manner, was that there was another consequence of the limitation.
This was that the evidence obtained and the information and facts established related to the matters dictated by the terms of reference and did not provide "an overview of such matters".
Mr Feeney said this was not a criticism of the tribunal, but a recognition of the reality of the situation. This lack of an overview was illustrated by reference to each of the three types of payments.
Dealing with the payments received by Mr Haughey, he said the tribunal had not been entitled to look into any payments from other persons or companies.
Documents sought and obtained during the effective discovery process might provide a better overview, but the tribunal would have to ignore such documents.
It would also be bound because of confidentiality to refrain from any express or implied reference or reliance on such documents or information, he said.
As regards payments to Mr Haughey, the tribunal could not know about matters which were not covered in its terms.
In relation to payments made to Mr Lowry and his company, Mr
Feeney said "a number of matters arise such as the detailed tax arrangements, which would provide a better overview, but would be beyond the scope of this inquiry".
It was in regard to the political contributions received that Fine
Gael had a particular concern about the absence of an overview.
Owing to the terms of reference, the bulk of these contributions from Mr Dunne were made to Fine Gael and its TDs.
"All the major parties have been, and continue to be, funded by contributions from various sources, including business and businessmen. It is by no means unique or particular to Fine Gael," he stressed.
The majority of Fine Gael's funding came from other sources including personal subscriptions, fund-raising schemes, affiliations and grants.
The tribunal had focused on "unique contributions to Fine Gael from a unique man", he said. Concentration by necessity on these matters had avoided seeing the clearer total picture.
Fianna Fail meanwhile had received a considerably greater sum from business than Fine Gael, while the Progressive Democrats had received a considerably greater proportion of sums from business. Fine Gael estimated that in the last 10 years, Fianna Fail had had available two and a half to three times more funds for expenditure than Fine
Gael, of which a higher percentage were funded by business contributions.
There was nothing wrong with seeking funds from supporters and electors and business which benefit from a stable and vigorous party political system, he said.
The Constitution guaranteed the citizen, subject to public order and morality, the right to form associations. The word associations was recognised by the courts to include political parties.
This right to form parties must include the right to join, support or contribute to such parties. All election campaigns were expensive and the cost now significantly fell on political parties, said Mr
Feeney.
It had been established beyond doubt by the tribunal that no benefit or gain was sought or given to Mr Dunne for his contributions to Fine Gael or its TDs and that there was no improper motive on the part of the party and its representatives in seeking such contributions.
Mr Dunne was a businessman who recognised the importance of stable government. In his own statement in relation to contributions to Fine
Gael, Mr Dunne had said: "When the country is going well, Dunnes
Stores are going well. For that to happen, it is important to have a good government, and you will not have a good government unless you have strong opposition." Mr Feeney said it was of benefit of the tribunal that the issues of political funding and ethics in public office had been extensively dealt with recently by the Oireachtas.
This was through the Electoral Act 1997 and the Ethics in Public
Office Act 1995.
These acts had been extensively debated and commented on before passing into law, he said. However, neither of these Acts were in place at the time of payments and contributions identified by the tribunal.
Under the Ethics in Public Office Act 1995, the failure to disclose payments could result in a possible suspension from office or from the House of the Oireachtas.
The tribunal should address whether the making of a false declaration under this Act was sufficiently covered in the potential suspension from the House or from office, and not in making it a criminal offence, said Mr Feeney.
The Electoral Act 1997 obliged disclosure by political parties, members of each House and MEPs, of all donations exceeding £
4,000 in respect of a party, £500 in respect of an individual, and both sums in any year were cumulative.
Failure to comply with the provision resulted in an offence being committed. This appeared different from the fact that failure to make a correct declaration under the Ethics in Public Office Act 1995 did not of itself represent a criminal offence.
The Electoral Act 1997 also obliged companies, trade unions or building societies to disclose in their annual reports any contributions to political parties in excess of £4,000
cumulative on the year.
Mr Feeney said it would be important for the tribunal to look at the effect these Acts would have had on the different types of payments and contributions made by Mr Dunne.
It would also be appropriate to assess the manner in which individuals dealt with payments which they received in order to gain some insight into the question of motive.
The payments made to Mr Haughey by Mr Dunne would have to have been disclosed under the Ethics in Public Office Act 1995.
The three bank drafts totalling £210,000 would have had to be recorded in the next annual return by Mr Haughey.
"He could not have allowed time to cloud his memory or to provide an excuse. If he had falsely complied with the disclosure obligations, he ran the risk of suspension from the Dail," said Mr
Feeney.
However, this Act did not provide an offence for false declarations.
Neither could Mr Haughey have organised his financial affairs in the way that he did under this legislation.
Each payment received by Mr Haughey would also have had to be disclosed in the register of interests of members of the Dail under this 1995 Act.
He would have to have placed himself in a position where he knew exactly who was contributing to him and how much they were giving.
"Mr Haughey could not have avoided disclosure if he had made an honest return of statement of the members' register of interests. The ploy of a Chinese Wall could not even be attempted. The obligation on
Mr Haughey would have been to make a full return of registerable interests," said Mr Feeney.
"The manner in which the payments were made to Mr Haughey in relation to the issue of motive show an absolute desire for no third-party scrutiny and no third-party knowledge.
"Even when the drafts were handed to Mr Haughey, they appear to have been dealt with in a secretive and unaccounted for manner."
In relation to the payments to Mr Lowry, if the Ethics in Public
Office Act had been in force, Mr Lowry could not have made an honest statement of registerable interests without disclosing all payments which he and his company received for work done for Dunnes Stores.
The tribunal should have regard to how the payments were dealt with by the parties. The lack of disclosure and accounting procedures indicated a desire for third parties not to be aware of such payments and this has obvious implications under the tax law.
In relation to political contributions, Fine Gael has for many years had a practice of not only auditing its accounts, thereby having its financial records independently scrutinised, but also published its income and expenditure details extracted from audited accounts in the publicly available Clar of the annual Ard Fheis, said
Mr Feeney.
The approach by Fine Gael to contributions from Mr Dunne was entirely different from that taken by either Mr Haughey or Mr Lowry.