Unethical behaviour was not a proper reason for establishing a tribunal of inquiry into the private financial affairs of a private individual, counsel for the former Taoiseach, Mr Charles Haughey, told the High Court yesterday.
Mr Eoin McGonigal SC said there had been no allegation of impropriety regarding any decision Mr Haughey took while in office. To set up an inquiry into ethical behaviour, in the absence of any wrongdoing, was not acceptable, he said.
In his closing submission, Mr McGonigal said it was "totally wrong" to single out Mr Haughey for investigation.
Mr Justice Geoghegan had put it to counsel that there was a public element involved, when the particular individual happened to be the Prime Minister or Taoiseach when a payment was made.
Mr McGonigal said Mr Haughey was not being inquired into solely in connection with his office as Taoiseach. If that was the case, there might be some validity to the judge's suggestion, "but that's not the trawl we are seeing".
All contributions before 1995 were confidential, whether given on a personal basis or as a party contribution, he said. Mr Justice Geoghegan asked if Mr McGonigal was suggesting that political ethics only came in with the 1995 Ethics in Public Office Act. Mr McGonigal said no, but before 1995, donations were confidential and "not a matter of public concern in that sense".
Mr Justice Geoghegan: "It wasn't illegal, but it may have been grossly unethical."
Mr McGonigal said the significance of the ethical question was whether something improper was done as a result. Ethical behaviour before 1995 regarding financial transactions would not be a proper matter for a public inquiry.
That was the big difference between the McCracken and Moriarty tribunals. In McCracken, there had been the starting point of payments having been made by a businessman to politicians.
One should first identify a decision or act causing concern and then see if any benefit was given to anybody, said Mr McGonigal. But the Oireachtas had decided to look at all the payments to see whether any act was carried out or any benefit given.
Mr McGonigal said ethical behaviour was not an expression used in the terms of reference or in the McCracken tribunal.
Mr Justice Geoghegan: "It's not an expression, it's a concept."
Mr McGonigal asked who it was decided the concept of ethical behaviour for the purpose of a tribunal.
To say that one was entitled to look into ethical behaviour in the absence of any wrongdoing was not acceptable, said Mr McGonigal. There had to be an allegation of wrongdoing before a tribunal could be identified as being validly set up.
As a result of the findings of the McCracken tribunal that Mr Haughey had received funds from Mr Dunne, it had been decided to set up a general trawl into his entire personal transactions with a view to seeing where he had got the money for the alleged lavish lifestyle he had led, and for no other reason.
Mr Justice Geoghegan said the lavish lifestyle certainly had been relevant but it was taken in combination with the finding that he had received "outsize payments from the Dunnes".
Mr McGonigal said it had been established that Mr Haughey had received payments from Mr Dunne and these were considered irregular by Mr Justice McCracken. The latter had not used the word unethical. But Mr Haughey was found to be "on the wrong side of ethical behaviour".
What was new in this inquiry was that we had no allegations of wrongdoing or unethical behaviour. It could be a way of establishing what payments were made to politicians holding a particular office, how they were paid, and the motives and circumstances. But to confine it to one man was "totally wrong".
Earlier, Mr McGonigal argued that the tribunal had a duty to explain its terms of reference, but had failed to do this.
He said the terms of reference were a complete invasion of the personal transactions and life of named individuals. He said it was vital that everyone was clear what the remit of the tribunal was.
