Former Irish Taoiseach (Prime Minister), Bertie Ahern, was brought down by the Tribunal of Inquiry into Certain Planning Matters and Payments which his first government had established shortly after entering office in 1997 and which issued its final report in March 2012. The Tribunal concluded that Ahern’s evidence concerning a number payments received by him was untruthful, though it fell short of finding that he received corrupt payments. More broadly the Tribunal Report concluded that during the 1980s and 1990s ‘corruption in Irish political life was both endemic and systemic’ (p1).

Though the final report raises many issues about governance and politics in Ireland, we should remember that the Mahon Tribunal was established to investigate allegations of subversion, by corrupt payments, of the regulatory regime over land use planning. Similarly the main emphasis of the final report of the  Moriarty Tribunal investigation into payments to politicians, which reported after more than thirteen years in March 2011, was on the impact of allegedly corrupt payments to politicians on regulation, in this case in respect of licensing of the mobile phone industry.

These two investigations of allegations of corruption in regulatory regimes raise important questions about modes of regulation and the investigation of problems with regulation which go beyond land use planning and mobile phone licenses. Whilst there has been no similar corruption inquiry into financial regulation the report of Central Bank Governor, Patrick Honahan, into the Irish Banking Crisis, published in May 2010, found an undue deference to regulated entities on the part of the Financial Regulator and a reluctance to escalate to more stringent enforcement in cases where persistent breaches of regulations were identified. It appears there was a form of cognitive capture in which breaches were addressed by discussions and the application of formal sanctions was unthinkable in most cases.

A key issue raised by the tribunal reports concerns the time and cost taken up by the investigations. The costs of the Mahon Tribunal (estimated to have cost €300M (US$400M) over fourteen years) are explained by the choice of a judicial and, de facto,  adversarial model of investigation under which all evidence was collected in public hearings in which both the Tribunal and the witnesses were represented by barristers. This high degree of procedural protection was granted to witnesses even though the Tribunal had no power to impose sanctions, only to report.  Alternative models of standing anti-corruption commissions exist in a number of other jurisdictions including New South Wales and Hong Kong.  The New South Wales Independent Commission Against Corruption (ICAC), for example, employs multi-disciplinary teams to engage in investigating complaints of corrupt conduct and can use public hearings in support of its investigations. The establishment of the NSW ICAC on a standing investigatory basis in 1989 has had the effect of routinizing both complaints and investigations concerning allegations of corruption.

The routinisation of corruption investigations has both advantages and disadvantages. On the positive side the triggering of investigations is not a political matter. In Ireland there is a suspicion that the establishment of tribunals of inquiry, while ostensibly concerned with the investigation of grave allegations of corruption, has been a mechanism to kick issues of responsibility into the long grass. Where the investigation of corruption is a routine matter simple complaints can be privately investigated to discover whether there is prima facie evidence to support a full investigation. These matters remain within the discretion of the commissioners operating under statutory powers. Such mechanisms give an outlet to whistleblowers to be heard by an independent body. Standing commissions also have the advantage of having investigatory capacity to enable them to compile preliminary evidence so that public hearings, where deemed necessary, can focus on a more limited range of essential issues, typically over no more than a few days, rather than having to collect all evidence in public. This factor reduces the time required for investigation very significantly such that standing anti-corruption commissions may be expected to report on investigations within a few months, rather than years.

The risks associated with standing anti-corruption bodies are concerned with their potential either for excessive zeal or for capture. Overly zealous anti-corruption investigations risk chilling positive aspects of relationships between government and industry. Capture is a particular risk where there is insufficient oversight and accountability. In New South Wales these risks have been addressed  first through the adoption of a preventive approach to corruption which works with public sector bodies to encourage them to adopt systems to resist and detect corrupt practices and second through accountability to the State parliament. The preventive approach is linked to the capacity for investigation and the seeking of prosecutions.

Whilst risks associated with standing anti-corruption bodies must be addressed through design, and there is a mixed history of success with standing anti-corruption commissions generally, I conclude that the approach has much to commend it over the ad hoc tribunal of inquiry method. The routinization of monitoring and investigation practices means that anyone thinking of engaging in corrupt practices can expect to be investigated. The NSW ICAC routinely investigates matters as diverse as university examinations, driver licensing, licensing of building contractors, property transactions, misuse of corporate credit cards, capital works projects, parliamentary allowances, inflation of legal costs and contraband in prisons.

This credible capacity for monitoring and detection has the potential to enrol citizens in supplying information and is likely to reduce risks of fatalistic thinking as to the inevitability of corrupt practices.  Relative to tribunals of inquiry standing commissions are likely both to be more effective, because they can address a wider range of allegations, and more efficient in that less resource is required for routine investigatory work. It offers a mechanism to support the embedding of ethics into relationships between public and private sector. It is often said that we follow rules when we are watched. Weaknesses in machinery for oversight carry risks of breaches of rules.