Ever since the Government refused to countenance a full investigation of the Ansbacher accounts under the Moriarty tribunal, it has been fighting a losing, rearguard action with public opinion. Having refused to seek the identification of those engaged in tax evasion and in breaches of exchange controls, under the original Moriarty terms of reference, it resisted later opposition demands for change on the grounds that it wasn't legally possible. The Attorney General, Mr David Byrne, was quoted in support of this contention and the Minister for Finance, Mr McCreevy, went before the Dail last month to declare: 'once a resolution has passed both Houses of the Oireachtas and once an order is made appointing the tribunal under specific terms of reference, the power to amend the order does not exist in the legislation.'
Mr Justice Flood appeared to shred this defence last week when he applied to the Dail for a change in the terms of reference governing his investigation into planning and political corruption in North Co Dublin. Seeking power to examine planning matters prior to 1985, the High Court judge clearly believed this authority fell within the competence of the Oireachtas and would provide protection against a legal challenge to his authority.
With two by-elections due to be held next Wednesday in Dublin North and Limerick East and its aspirations to political probity open to public review, the Government had no option but to accede to the learned judge's request. But it also had to make the inevitable change as palatable as possible. The final determination by Cabinet in the matter may contain the seeds of disaster. In moving to protect the position of its Attorney General and the legal advice he proffered in relation to the Ansbacher deposits, the Government has resolved to introduce amending legislation to the Dail next Tuesday involving the Tribunal of Inquiries Act. Subsequently, it will make an Order changing the terms of reference of the Flood tribunal.
The Fine Gael leader, Mr John Bruton, has argued trenchantly that by introducing retrospective legislation of this nature with penal effect, the Government will open the way to a successful legal challenge against the Flood tribunal. His contention that the Dail already enjoys the power to alter the terms of reference and that there is no need for amending legislation was supported by Mr Ruairi Quinn and Mr Proinsias De Rossa. The criticisms were rejected by the Government. And there was sharp disagreement between Mr Bruton and the Taoiseach, Mr Ahern, as to the nature of the legal advice given by the former attorney general, Mr Dermot Gleeson, to the last government. Central to it all were repeated opposition demands for the Ansbacher accounts to be fully investigated and opened to public view by the Moriarty tribunal.
The quality of the conflicting legal advice available to the Government and the opposition parties in relation to the Flood tribunal will almost certainly be tested in the courts. Only at that stage will the public be in a position to evaluate the political positions now being adopted. In the meantime, the Government should be given the benefit of the doubt on the grounds that it has moved to facilitate Mr Justice Flood's request.