Judgment delivered the 16th day of February, 2006 by Denham J.
1. A feature of public life in Ireland over the past two decades has been the establishment of Tribunals of Inquiry. There has been a consequent stream of litigation as people have sought orders, requesting the courts to intervene in the tribunal process. This is such a case. Denis O’Brien, the applicant/appellant, hereinafter referred to as the applicant, brought a motion, dated the 27th day of June 2005, to the High Court seeking an order of Certiorari quashing the decision of The Hon. Mr. Justice Moriarty, the sole member of the Tribunal of Inquiry into payments to Messrs. Charles Haughey and Michael Lowry, (hereinafter referred to as ‘the Tribunal’), to proceed to public hearings in respect of the purchase of Doncaster Rovers Football Club and the purported connection of Michael Lowry to the said purchase. The applicant sought also a permanent injunction restraining the Tribunal from proceeding to hold public hearings in respect of the Doncaster Rovers Football Club transaction.
2. The background facts as to the establishment of the Tribunal are well known and have been set out in previous judgments. However, they are relevant to the decision in this case and so I will restate them for ease of reference.
2.1 The Tribunal was established by resolution of Dáil Éireann on the 11th day of September, 1997, and by resolution of Seanad Éireann on 18th day of September, 1997.
2.2 It was resolved that a Tribunal be set up under the Tribunals of Inquiry (Evidence) Act, 1921, as amended, and the Tribunals of Inquiry (Evidence) (Amendment) Act, 1979, to inquire urgently into and to report to the Clerk of the Dáil, and make such findings and recommendations as it sees fit, in relation to definite matters of urgent public importance, which were specified.
2.3 The specified matters relevant to this motion include the following: “e. Whether any substantial payments were made directly or indirectly to Mr. Michael Lowry (whether or not used to discharge monies or debts due by Mr. Michael Lowry or due by any company with which he was associated or due by any connected person to Mr. Michael Lowry within the meaning of the Ethics in Pubic Office Act, 1995 or discharged at his direction), during any period when he held public office in circumstances giving rise to a reasonable inference that the motive for making the payment was connected with any public office held by him or had the potential to influence the discharge of such office.
f. The source of any money held in the Bank of Ireland, Thurles branch, Thurles, Co. Tipperary, the Allied Irish Bank in the Channel Islands, the Allied Irish Banks, Dame Street, Dublin, the Bank of Ireland (I.O.M.) Limited in the Isle of Man, the Irish Permanent Building Society, Patrick Street branch, Cork or Rea Brothers (Isle of Man) Limited, in accounts for the benefit or in the name of Mr. Lowry or any other person who holds or has held Ministerial office or in any other bank accounts discovered by the Tribunal to be for the benefit or in the name of Mr. Lowry or for the benefit or in the name of a connected person within the meaning of the Ethics in Public Office Act, 1995, or for the benefit or in the name of any company owned or controlled by Mr. Lowry.
g. Whether Mr. Lowry did any act or made any decision in the course of any Ministerial office held by him to confer any benefit on any person making a payment referred to in paragraph (e) or any person who was the source of any money referred to in paragraph (f) or on any other person in return for such payments being make or procured or directed any other person to do such act or make such decision.
h. Whether any payment was made from money held in any of the bank accounts referred to at (f) to any person who holds or has held public office.
i. Whether any holder of public office for whose benefit money was held in any of the accounts referred to at (b) or (f) did any act, in the course of his or her public office, to confer any benefit on any person who was the source of that money, or directed any person to do such an act.”
2.4 ‘Payment’ was defined as including money and any benefit in kind; and the payment to any person includes a payment to a ‘connected person’ within the meaning of the Ethics in Public Office Act, 1995.
2.5 A ‘connected person’ is defined in s. 2(2) of the Ethics in Public Office Act, 1995 as:
“(i) a person is connected with an individual if that person is a relative of the individual,
(ii) a person, in his or her capacity as a trustee of a trust, is connected with an individual who or any of whose children or as respects whom any body corporate which he or she controls is a beneficiary of the trust,
(iii) a person is connected with any person with whom he or she is in partnership,
(iv) a company is connected with another person if that person has control of it or if that person and persons connected with that person together have control of it,
(v) any two or more persons acting together to secure or exercise control of a company shall be treated in relation to that company as connected with one another and with any person acting on the directions of any of them to secure or exercise control of the company.”
2.6 The Tribunal was requested to carry out its inquiries consistent with the Tribunals of Inquiry (Evidence) Acts, 1921 and 1979 and in the following manner:
“i. To carry out such investigations as it thinks fit using all the powers conferred on it under the Acts (including, where appropriate, the power to conduct its proceedings in private), in order to determine whether sufficient evidence exists in relation to any of the matters referred to above to warrant proceeding to a full pubic inquiry in relation to such matters,
ii. To inquire fully into matters referred to above in relation to which such evidence may be found to exist, and to report to the Clerk of the Dáil thereupon, iii. In relation to any matters where the Tribunal finds that there is insufficient evidence to warrant proceeding to a full public inquiry, to report that fact to the Clerk of the Dáil and to report in such a manner as the Tribunal thinks appropriate, on the steps taken by the Tribunal to determine what evidence, if any, existed.
. . . ”.
3. The applicant’s application was refused by the High Court on the 24th day of August, 2005. There were two issues before the High Court which are now before this Court on appeal: (a) the sufficiency of evidence upon which to proceed to a public hearing, and (b) the temporal issue.
The High Court (Abbott J.) held that there was sufficient evidence to enable the Tribunal proceed to public hearing, not in the sense of the term of art understood in the courts but in the sense of giving cause for further inquiry. The learned trial judge was satisfied that the In Re Haughey [1971] I.R. 217 rights of any person in respect of whom an adverse conclusion might be made would be well safeguarded.
As to the temporal issue, the High Court was of the view that the Tribunal would, on its terms of reference, be entitled to inquire into payments relating to a transaction which straddles the date upon which the Tribunal was appointed and the terms of reference fixed. Reliance was placed on the meaning of ‘payment’ as including ‘money and any benefit in kind’ and that the payment to any person includes a payment to a ‘connected person’ within the meaning of the Ethics and Public Office Act, 1995. The learned trial judge was of the view that it would be an unduly restrictive interpretation of ‘benefit in kind’ to exclude the benefit of a contract or an arrangement where the contract or arrangement might have been made prior to the appointment of the Tribunal and the fixing of its terms of reference, but the payment, performance or execution of the arrangement or contract, could, would or might take place after such appointment and fixing of terms of reference. The learned High Court judge was of the opinion that the benefits of such arrangements, which straddle the appointment of the Tribunal and the fixing of the terms of reference, are benefits in kind within the terms of reference
4. The applicant has appealed against the determination of the High Court on the following grounds:
“i. That the learned trial Judge erred in law and on the facts in refusing to quash the decision of the [Tribunal] to proceed to public hearings in respect of the purchase of Doncaster Rovers Football Club and the purported “connection” of Michael Lowry to the said purchase on the grounds that the Terms of Reference of the [Tribunal] do not empower him to investigate transactions taking place after the date of establishment of the Tribunal and giving rise to payments to Mr. Lowry;
ii. That the learned trial Judge erred in law and on the facts in determining that the purchase of Doncaster Rovers Football Club was within the [Tribunal’s] Terms of Reference since it “straddled” the date of establishment of the Tribunal;
iii. That the learned trial Judge erred in law and on the facts in refusing to grant an Order to the applicant quashing the decision of the [Tribunal] to proceed to public hearings in respect of the purchase of Doncaster Rovers Football Club and the purported “connection” of Michael Lowry to the said purchase on the grounds that it was not reasonable for the [Tribunal] to determine that there was sufficient evidence before the [Tribunal] at the time of that decision, namely 27 May 2004, to warrant proceeding to a full public inquiry in respect of the matter of the involvement of Mr. Michael Lowry in the purchase of Doncaster Rovers Football Club;”
In essence there are two points for consideration on this appeal: (a) the temporal issue, and (b) the sufficiency of evidence issue.
5. (a) The temporal issue
I shall consider first the temporal issue. The query is whether the terms of reference may include transactions which occurred after the establishment of the Tribunal. Thus it is a question of interpretation of the terms of reference.
In contemplating the terms of reference of a tribunal of inquiry the special nature of such a body requires to be borne in mind. First, the nature of its establishment. It was established by resolutions of both Houses of the Oireachtas, by persons elected in this democracy. It is an organ specifically chosen by the representatives of the People to inquire into specific issues. The fact that the terms of reference are rooted in resolutions of both Houses of the Oireachtas is an important factor.
Secondly, the nature of the body in issue is an important factor. It is a tribunal of inquiry. It is an inquisitorial body. It is not part of the Courts’ infrastructure of the State. It is not a court of law. It has an inquisitorial function to ascertain the truth or falsity of facts and report to Parliament: Goodman International v. Mr. Justice Hamilton 2 I.R. 542, at p. 590.
The terms of reference of this Tribunal are broadly drafted, see paragraph 2.3 above. Specifically I note that paragraph (e) requires inquiry into whether any substantial payments were made directly or indirectly to Mr. Lowry during any period when he held public office in circumstances giving rise to a reasonable inference that the motive for making the payment was connected with any public office or had the potential to influence the discharge of public office (the emphasis is added). It is further broadened by the definition of ‘payment’ and ‘connected’ person, as set out in paragraphs 2.4 and 2.5 above. The width of the terms of reference are apparent also in paragraph (g) where the Tribunal is to inquire into whether Mr. Lowry did ‘any act’ or made ‘any decision’ in the course of Ministerial office held by him to confer ‘any benefit’ on ‘any person’ making a payment referred to in paragraph (e) or ‘anyone’ who was a source of ‘any monies’ referred to in paragraph (f) or ‘any other person’ in return for such payments being made or procured or directed to ‘any other person’.
As to the inquiry required, it is apparent that there is no express time limit given to the inquiry. No specific time frame is set out in the resolutions. These terms of reference may be distinguished from the terms of reference of other tribunals, e.g. the McCracken Tribunal, where the Houses of the Oireachtas specified dates. The fact that the Houses of the Oireachtas did not make such a temporal limitation for this Tribunal is an important factor.
The specific words of the terms of reference require the Tribunal ‘to inquire urgently’ and to make such ‘findings and recommendations as it sees fit’ in relation to specified matters. It is a fact-finding operation reporting to the Legislature: see Goodman International v. Mr. Justice Hamilton 2 I.R. 542, Finlay C.J. at
p. 588.
The applicant asked the Court to consider certain specific words of the terms of reference which are in the past tense and construe them so as to interpret the whole terms of reference accordingly. I am not satisfied that such an approach is appropriate. It is clear, as stated previously, that the Tribunal was given broad terms of reference. The purpose of the Tribunal’s inquiries and report is to restore public confidence in our democratic institutions. A technical or legalistic approach to interpreting the terms of reference may give rise to the view that inquiry has not been made into all the relevant transactions. As was submitted on behalf of the Tribunal, the Tribunal has to consider, amongst other matters, whether various property transactions, i.e. Doncaster, Cheadle and Mansfield (and the related financial transactions), were intended as a substitution for a payment of £147,000 to Michael Lowry which was reversed on the date of the establishment of the McCracken Tribunal and whether these transactions were part of a train of transactions related to the conferral of benefit on Michael Lowry. Counsel on behalf of the Tribunal pointed out that some of the events referred to, a Telenor/ESAT $50,000 payment and the £147,000 payment, predated the terms of reference, while others, the Mansfield and Cheadle transactions and, although counsel could not yet state with certainty, the Doncaster Rovers transaction, appear in some respects to post date the terms of reference. Further counsel submitted that it could not yet be clear whether there had been commitments made, whether there had been the commencement of a process to acquire property, before the terms of reference, even if the acquisition was after the terms of reference. If the approach of the applicant were correct it would undermine the objectives of the inquiry.
It is well established in our jurisprudence that the terms of reference primarily fall to be interpreted by the Tribunal. It is an important function of the Tribunal. It is an area where the Tribunal is given a wide discretion, as has been recognised in previous cases. The Courts have been slow to intervene in a tribunal’s interpretation of its terms of reference.
In this case the Tribunal has interpreted the terms of reference as requiring it to inquire into whether a payment was made to Michael Lowry during a period when he held public office as including the period after the adoption of the terms of reference, in circumstances giving rise to a reasonable inference that the motive for making the payment was connected to or had the potential to influence the discharge of his office. In my opinion that is an interpretation which is reasonable and open to the Tribunal.
Transactions may have several stages, they could commence with oral words. As the Chief Justice pointed out during the hearing of the case, a transaction could commence with words such as ‘I’ll see you right’, and then progress at a later stage to written transactions between parties. Indeed such parties may be ‘connected’ in the sense defined in the Ethics in Public Office Act, 1995, while transactions may reflect another form of benefit in kind. It is a question of fact as to whether a series of actions form part of a number of transactions which are the subject of this inquiry. Such issue is primarily a matter for the Tribunal.
The settled jurisprudence of this Court is contrary to the applicant’s submissions. It is well established that the courts are slow to intervene in the working of a tribunal whose personnel have extensive knowledge of the subject. As Keane C.J. stated ex tempore in Flood v. Lawlor, Unreported, Supreme Court, 24th day of November, 2000: “It is not necessary to stress, because it has been repeatedly said in this court, that the courts in interpreting the relevant legislation, must afford a significant measure of discretion to the Tribunal as to the way in which it conducts these proceedings. It must, of course, observe the constitutional rights of all persons who appear before it or upon whom the decisions of the Tribunal or the manner in which they conduct their business may impinge, but making every allowance for that important qualification, the principle remains as I have indicated. The Tribunals must be afforded a significant measure of discretion as to the manner in which they carry out the important task which has been entrusted to them by the Oireachtas because if that principle is not borne in mind then the very important objectives which the establishment of the Tribunal of this nature was intended to achieve can only be frustrated.”
The interpretation of the terms of reference is a function of the Tribunal and primarily is not a matter to be determined by the court. If the terms are vague or ambiguous or capable of two or more meanings, it is for the Tribunal to interpret the terms: see Haughey v. Moriarty 3 I.R.1 at p. 56.
It may well be that arising from experience gained over the last two decades, in the future terms of reference of tribunals established by the Houses of the Oireachtas may not be so broadly drafted, and specific time limits may be incorporated. But that is not the position of this Tribunal.
On this ground of appeal, I would affirm the decision of the High Court and dismiss the appeal.
(b) The sufficiency of evidence upon which to proceed in a public hearing.
The second issue raised by the applicant is the sufficiency of evidence required to proceed to pubic hearings in respect of the issue of the purchase of Doncaster Rovers Football Club and the purported connection of Michael Lowry to the said purchase. On behalf of the applicant it was submitted that the learned High Court judge erred in refusing to quash the decision of the Tribunal to proceed to public hearings on this issue on the basis that it was not reasonable for the Tribunal to determine that there was sufficient evidence.
I am satisfied that the learned High Court judge was correct, and I would dismiss this ground of appeal also. While there are a series of stages in an inquiry, the core function of a tribunal is to dispel public disquiet. Thus the public hearings are a critical aspect of the process. It is quintessentially a matter for the Tribunal to determine the matters to proceed to public hearing. In the circumstances, I am satisfied that the applicant has failed to discharge the onus which rests upon him. Keane C.J. in his judgment in Mr. Justice Flood v. Liam Lawlor ex tempore judgment delivered 24th day of November 2000, nem dis., stated:
“It is worth noting, I think, that in a recent decision of this court arising out of the same inquiry of Bailey v. Mr. Justice Flood Supreme Court 14 April, 2000, in the judgment of the court, delivered by Mrs. Justice Denham on the 14th April of this year, the following paragraph appears which is highly relevant to the issues with which this court is concerned this morning.
‘The novel feature of the present case was the argument that the evidence of the applicants should be heard by the Tribunal in private in the first instance and if it was then established or emerged that the evidence so given was relevant or material the hearing could be repeated in public. Assuming, without deciding, that such a procedure was permissible a decision as to whether that course should be adopted was one which fell to be made by the Tribunal itself. That decision must conform to the standard of reasonableness laid down by this court in The State (Keegan) and the Stardust Victims Compensation Tribunal [1986] I.R. 642 and O’Keefe –v-An Bord Pleanála [1993] 1 I.R. 39.’
There is also a reference to the similar approach taken in England in the case of R –v- Lord Saville [1999] 4 All ER 860.
Applying those same considerations to the present case, I am quite satisfied that the Tribunal was entirely within its rights in seeking in the first instance to inquire from the defendant in private and in correspondence and so on through his solicitors whether he could give them assistance in this matter and that having exhausted, as the Tribunal saw it, that line of approach, it was then entirely a matter for the Tribunal as to whether it then invoked its power of requiring the person concerned to attend before them in public and to give evidence on oath as to these matters. Applying again the principle that the courts will entrust a significant measure of discretion to bodies entrusted with various jurisdictions, be they tribunals or otherwise, namely, that the court will not interfere with them save where the decision reached is irrational or flies in the face of common sense. I entertain no doubt that this was a decision which the Sole Member of the Tribunal was perfectly entitled to arrive at and one which was entirely within his discretion to arrive at and that no ground has been shown on which the High Court should have refused to make the Order.”
While in this case the applicant is seeking the reverse – preferring the private inquiry and seeking to stop the public inquiry – the role of the court remains the same and the same law is applicable, i.e. that the court should not interfere save where the decision is irrational or flies in the face of common sense.
A Tribunal of Inquiry has several stages – which were identified by Hamilton C.J. in Haughey v. Moriarty 3 I.R. 1 at p. 74 as:
“ 1. a preliminary investigation of the evidence available;
2. the determination by the tribunal of what it considers to be evidence relevant to the matters into which it is obliged to inquire;
3. the service of such evidence on persons likely to be affected thereby;
4. the public hearing of witnesses in regard to such evidence, and the cross-examination of such witnesses by or on behalf of persons affected thereby;
5. the preparation of a report and the making of recommendations based on the facts established at such public hearing.
The Tribunal is entitled to conduct the preliminary investigation in private to decide what evidence is relevant to the public hearings. However, as in other arenas, see Brady v. Haughton Unreported, Supreme Court, 29 March, 2005, the word ‘evidence’ does not equate to that term as used in a court of law. Rather, it describes the information which is available, relevant, and which is served on the persons likely to be affected. Thereafter that information comes before the Tribunal in oral evidence, which is subject to cross-examination. It is then the basis upon which the Tribunal comes to its conclusion as set out in the report. It is not correct to construe the term ‘evidence’ in the terms of reference as equivalent to ‘evidence’ as understood in a court of law. It falls to be construed in context, and in such an arena is more comparable to the word ‘information’.
This information is at the core of the function of the Tribunal. The Royal Commission of Tribunals of Inquiry, 1966, in the United Kingdom, under the Chairmanship of Salmon L.J., stated of the Tribunal of Inquiry system, which considerations were applied to this jurisdiction in Haughey v. Moriarty [1999] 3 IR 1 at p.54:
“The inquisitorial procedure is alien to the concept of justice generally accepted in the United Kingdom. There are, however, exceptional cases in which such procedures must be used to preserve the purity and integrity of our public life without which a successful democracy is impossible. It is essential that on the very rare occasions when crises of public confidence occur, the evil, if it exists, shall be exposed so that it may be rooted out; or, if it does not exist, the pubic shall be satisfied that in reality there is no substance in the very prevalent rumours and suspicions by which they have been disturbed. We are satisfied that this would be difficult if not impossible without public investigation by a inquisitorial tribunal possessing the powers conferred by the Act of 1921.”
In Haughey v. Moriarty [1999] 3 IR 1 Hamilton C.J. held that these considerations are applicable in this jurisdiction, and that continues to be true today. This Tribunal is continuing to carry out an inquiry critical to preserve the purity and integrity of our public life. The Tribunal is inquiring to see if the specified evils exist – so that if they do they may be rooted out. Of equal importance, if it be found that the evil does not exist, the Tribunal may so report so that if that is the case the public may be satisfied that in reality there is not substance to prevalent rumours and suspicions. Either conclusion is important to pubic life.
It has been held that the admissibility of evidence is purely a matter for the Tribunal: Murphy v. Flood 2 I.R. 298. In that case Hamilton C.J. went on to hold that to admit the evidence in issue cannot be said to have been made by the Tribunal in breach of the applicant’s constitutional rights or to be so unreasonable or irrational as to justify the court in interfering therewith: see p. 305.
In arriving at the decision as to the sufficiency of the evidence the test, as set out previously, is that established in The State (Keegan) v. The Stardust Compensation Tribunal [1986] I.R. 642 and O’Keefe v. An Bord Pleanála 1 I.R. 39. This sets a high bar for an applicant to achieve. Applying that test to the facts relating to the purchase of the Doncaster Rovers Football Club in the context of the events in issue, I am satisfied that the appeal on this ground fails also.
Tribunals should be afforded a significant level of discretion as to the manner in which they carry out the important work which has been given to them by the Houses of the Oireachtas. The court should not intervene save where the decision is irrational, unreasonable or contrary to common law. I am satisfied that the decision in this case was one which the Tribunal was entitled to take, it is within its discretion.
I do not consider it necessary to set out in detail the precise factual matters raised on behalf of the applicant and on behalf of the Tribunal as to the ‘evidence’ available upon which the decision of sufficiency was made to proceed to public hearing. Certain details were set out by the learned trial judge, which I deem sufficient. These matters have yet to be addressed in public hearings by the Tribunal.
Delay
Tribunals of Inquiry are established by the Houses of the Oireachtas to inquire into definite matters of urgent public importance. Such tribunals should be assisted to make their inquiries within an appropriate time frame. While all persons have their right of access to the courts, it is an unfortunate consequence of court proceedings that by their very nature such proceedings will halt or slow the workings of a tribunal. This delay is extended if an applicant seeks both an order of the High Court and, on appeal, the Supreme Court. While such right of access is fundamental, and not to be gainsaid, the consequent delay, or delays, should not be visited upon the Tribunal.
Conclusion
For the reasons given I would not intervene in the tribunal process, I would affirm the order of the High Court, and dismiss the appeal.
THE SUPREME COURT [370/2005]
Murray C.J.
Denham J.
Hardiman J.
Geoghegan J.
Fennelly J.
BETWEENDENIS O’BRIEN
Appellantand
MR. JUSTICE MICHAEL MORIARTY
(THE SOLE MEMBER OF THE TRIBUNAL OF INQUIRY INTO PAYMENTS TO MESSRS. CHARLES HAUGHEY
and MICHAEL LOWRY)
Respondentand
THE ATTORNEY GENERAL,
REPRESENTING THE PUBLIC INTEREST
Notice Party
JUDGMENT of Mr. Justice Fennelly delivered the 16th day of February, 2006.
By an order dated 12th May 2005, this court gave leave to the above-named Appellant to apply for an order of certiorari by way of application for judicial review of the decision of the Respondent to proceed to public hearings in respect of the purchase of Doncaster Rovers Football Club (hereinafter DRFC) and the purported “connection” of Michael Lowry to the said purchase on the grounds that
(a) the Terms of Reference of the Respondent do not empower it to investigate transactions taking place after the date of the establishment of the Tribunal and giving rise to payments to Mr Michael Lowry;
(b) it was not reasonable for the Respondent to determine that there was sufficient evidence before the Respondent at the time of that decision, namely 27th May 2004, to warrant proceeding to a full public inquiry in respect of the matter of the involvement of Mr Michael Lowry in the purchase of Doncaster Rovers Football Club.
By the same order this court refused the Appellant’s application for such leave on a number of other grounds.
The Appellant’s application for judicial review came on for hearing before Abbot J in the High Court over five days in July 2005. He delivered judgment on 6th October 2005 and refused the application on all grounds. The Appellant now appeals that decision.
The Appellant has made submissions before the Court relating both to the substantive and to the procedural provisions of the Terms of Reference of the Tribunal.
The Terms of Reference of the Tribunal are contained in the resolution passed by Dáil Eireann on 11th September 1997 and by Seanad Eireann on 18th September 1997 and set out in the Order of the Taoiseach of 26th September 1997 setting up the Tribunal. The Tribunal is interested in inquiring into the business affairs of the Appellant only insofar as “payments” as defined may have been made to Mr Michael Lowry. It has not been suggested that the Appellant has ever had any connection with Mr Charles Haughey. Two aspects of the Terms of Reference, one substantive and one procedural, are relevant to the present application. The relevant substantive part of the resolution is that it was resolved:g) Whether Mr Lowry did any act or made any decision in the course of any Ministerial office held by him to confer any benefit on any person making a payment referred to in paragraph (e) or any person who was the source of any money referred to in paragraph (f) or on any other person in return for such payments being made or procured or directed any other person to do such act or make such decision.”
The term "payment," is defined so as to include “money and any benefit in kind and the payment to any person includes a payment to a connected person within the meaning of the Ethics in Public Office Act, 1995.”
The procedural provisions of the Terms of Reference, raised in argument on the appeal, are:
“And that the Tribunal be requested to conduct its enquiries in the following manner, to the extent that it may do so consistent with the provisions of the Tribunals of Inquiry (Evidence) Acts, 1921 and 1979:-
i. To carry out such investigations as it thinks fit using all the powers conferred on it under the Acts (including, where appropriate, the power to conduct its proceedings in private), in order to determine whether sufficient evidence exists in relation to any of the matters referred to above to warrant proceeding to a full public inquiry in relation to such matters,
ii. To enquire fully into all matters referred to above in relation to which such evidence may be found to exist, and to report to the Clerk of the Dáil thereupon,
iii. In relation to any matters where the Tribunal finds that there is insufficient evidence to warrant proceeding to a full public inquiry, to report that fact to the Clerk of the Dáil and to report in such a manner as the Tribunal thinks appropriate, on the steps taken by the Tribunal to determine what evidence, if any, existed…”
The present proceedings are relevant to paragraphs e) and g) of the Terms of Reference in the following way. Mr Lowry, was responsible in 1996, as Minister for Transport, Energy & Communications, for the grant on behalf of the State of the second mobile phone GSM license. The successful bidder was a company promoted by the Appellant, namely ESAT Digifone. For the purposes of this appeal, it has been assumed that the Appellant benefited from the grant of that license. Paragraph g) of the Terms of Reference requires the Tribunal to inquire whether Mr Lowry, insofar as the GSM transaction is concerned (though it is not expressly mentioned), made the relevant decision in order “to confer any benefit on any person making a payment referred to in paragraph (e)……” In short, it is an inquiry into whether the decision was made corruptly. Paragraph e) is focused on any “payments” which may have been made, and hence necessarily corruptly made, to a person benefiting from the decision.
The Appellant’s case
Each of the Appellant’s arguments calls for an interpretation of the Terms of Reference. Firstly, he says that, whatever its relevance to the Terms of Reference, the entire of the Doncaster Rovers Football Club transaction took place, as indeed appears to be the case, after the establishment of the Tribunal and after the date when the Terms of Reference were adopted. It was not and could not, it is said, have been intended to establish a public inquiry into what were, when the Tribunal was established, future events. Secondly, and, in effect alternatively, the Appellant argues that the Respondent, when he decided to proceed to hold public hearings in respect of the Doncaster Rovers Football Club matter, did not have any evidence sufficient to warrant such a decision. The decision was, therefore, unreasonable to the extent of being, for the purposes of judicial review, irrational.
The following is a brief summary of the material available to the Tribunal in respect of the Doncaster Rovers Football Club transaction. In 1998, the Appellant received a proposal from one Kevin Phelan for the purchase of the property of Doncaster Rovers Football Club, then in administrative receivership. Mr Kevin Phelan, who resides in the Northern Ireland, and who is apparently not available to the Tribunal as a witness, contacted the Appellant’s agent, one Aidan Phelan. The two Phelans are not related. On the recommendation of Kevin Phelan, one Christopher Vaughan, an English solicitor was appointed to act for the purchaser in this transaction. Mr Vaughan acted for Mr Lowry in connection with other English property transactions, though Mr Vaughan has said that he first met Mr Lowry on 24th September 1998.
Doncaster Rovers Football Club was purchased in August 1998 by Westferry Limited, part of an O’Brien Family Trust, from Dinard Trading Limited and Shelter Trust Anstalt. A Mr Ken Richardson was described by Mr Vaughan as the “controller” of these entities. The Trust, via Westferry Limited, now owns all the Doncaster Rovers property. The transfer took place on 18th August 1998.
The Applicant gave details in his affidavit grounding his application for judicial review of the financing of this purchase. He says that Michael Lowry had no involvement, legal or beneficial, at any stage in the transaction. In any event, Mr Lowry had resigned from the Irish Government two years before the transaction, though he continued to be a member of the Dáil and remained so at the time of the transactions covered by the Doncaster Rovers investigations proposed by the Tribunal.
On 25th September 1998, Mr Christopher Vaughan, Solicitor, drafted a letter to be sent to Mr Lowry, discussing Doncaster Rovers in some detail. This letter is central to the Tribunal’s decision to investigate the Doncaster Rovers Football Club transaction. Firstly, it was headed “Doncaster Rovers Football Limited.” Secondly, it stated that certain letters concerning that transaction were enclosed, i.e., they were being sent to Mr Lowry. Thirdly, it discussed some of the outstanding problems regarding that transaction, including Mr Vaughan’s fees. Finally, in it, Mr Vaughan stated, inter alia: “I had not appreciated your total involvement in the Doncaster Rovers Transaction…...” According to Mr Vaughan’s later letter, that letter was neither sent by Mr Vaughan nor received by Mr Lowry. An article based on the draft letter appeared in the Irish Times on 11th January 2003. This triggered the Tribunal’s interest in the matter. The Tribunal wrote to the Appellant making inquiries concerning any involvement of Mr Lowry in the Doncaster Rovers transaction.
In the week following the meeting of September 1998 referred to in Mr Vaughan’s letter, Mr Kevin Phelan told Mr Vaughan that he was mistaken about Mr Lowry’s involvement in the Doncaster Rovers matter, that Mr Lowry had no such interest.
By a letter dated 6th March 2003, Mr Vaughan wrote to the Tribunal explaining his letter of 25th September 1998, stating how he had incorrectly believed that Mr Lowry had had such an involvement with the Doncaster Rovers purchase. Mr Vaughan, having outlined the history of meetings with a number of the relevant persons including Mr Lowry, said that his earlier view was “totally incorrect.” He accepted that in “hindsight it does seem unusual that I believed Michael Lowry to be involved in DRFC, as throughout the whole of the discussions and negotiations relating to the acquisition of DRFC over a period of some nine months, I had never heard Michael Lowry’s name mentioned…….” On the other hand, Mr Vaughan had also written that he did not think he had “misunderstood” Mr Lowry’s “comments to me that he was involved in DRFC, but in hindsight I must put it down to some sort of political ego that he was trying to attach his name to what appear [sic] to be a successful venture.” As mentioned below, Mr Vaughan seems to have spoken in similar terms to Ms Ruth Collard.
The Appellant explains the background to the Vaughan letter as follows. On 24/25 September 1998, Mr Lowry, accompanied Mr Kevin Phelan, who had organised property transactions for Mr Lowry in England, to a meeting with Mr Vaughan, who was acting for Mr Lowry in other matters, to discuss Mr Lowry’s property transactions. During the course of the discussions, Mr Vaughan and Mr Kevin Phelan discussed the Doncaster Rovers purchase, in respect of which there were some outstanding matters. Mr Lowry remained present and took part in these discussions.
A dispute arose subsequently between the parties to the Doncaster Rovers transaction regarding retention monies. Dinard, later joined by Shelter Trust Anstalt brought proceedings in 2001 against Westferry Ltd in the Queen’s Bench Division of the High Court in England. This dispute was resolved by mediation in September 2002.
A number of odd events are alleged to have occurred about this time. Mr Denis O’Brien, senior, the Applicant’s father later made a statement to police alleging that Mr Richardson and Mr Mark Weaver attempted to blackmail him by threatening that, if the litigation was not settled “in a friendly and generous manner, a copy of [Christopher Vaughan’s letter to Michael Lowry] would find its way to the Tribunal or the newspapers.”
Mr Vaughan prepared a memorandum of 18th October 2002, describing a visit to his office on that date of one Mark Weaver, who produced to him a copy of his draft letter of 25th September 1998 to Mr Lowry. He said this had been sent to him by FAX and that a journalist from the Irish Times had been phoning him constantly about the letter. Mr Weaver described himself as Mr Richardson’s “runner” but also said that he was employed by Dinard trading. He said that Dinard Trading’s solicitors in Zurich had had an approach from a third party to purchase from them all documents in their possession about the Doncaster Rovers matter. Mr Weaver repeatedly asked Mr Vaughan what he should do with the letter. Mr Vaughan took a copy of the fax copy of the letter. He also stated in the course of the memorandum that Mr Lowry had had no involvement in the Doncaster Rovers transaction. He suggested that the approach involved “some sort of blackmail.”
On 10th September 2002, Ms Ruth Collard, a partner in Carter-Ruck and partners, solicitors, who had commenced to act for the Appellant made an attendance note of a meeting with Mr Denis O’Connor, an accountant acting for Mr Lowry. Mr O’Connor is noted as saying that he had been trying to sort out, on the Appellant’s behalf, the “position with Kevin Phelan” and that the latter had made various threats to cause trouble for Mr Lowry. The attendance note contains the following:
“DOC said the upshot of all his discussions with DOB and KP had been that he had been asked if he would be prepared to meet Ken Richardson and Mark Weaver and at DOB’s request a meeting had been arranged, first in Manchester and then in Dublin……………. He said that the other side were laughing at us and that they would ensure that the mediation [regarding the retention dispute] would not succeed…… They wanted to cause the maximum embarrassment to ML. RC asked how they would cause any embarrassment to ML, as, so far as she was aware, he had no connection to the proceedings. DOC said that ML did have a connection and that he had been in the room when discussions had taken place between KP and KR regarding the lease. RC said no one had ever suggested that to her previously.” [emphasis added]
There is a memorandum of another member of the firm of Carter-Ruck and partners, Ms Kate Macmillan, dated 22nd October 2002, recording a telephone conversation in which Mr Vaughan is stated to have said: “ML said that he was involved in Doncaster Rovers Football Limited. CV said that perhaps was [sic, recte “what”] ML had said to him about Doncaster Rovers Football Limited was politicians’ puff. Perhaps he was latching onto some transaction, which might have been perceived at the time as successful……
On 9th December, Mr Ken Richardson and Mr Mark Weaver presented themselves unannounced at the Tribunal Offices at Dublin Castle. Mr Weaver stated that Mr Lowry was involved in the Doncaster Rovers transaction, that he himself was under police protection that he was receiving mobile phone calls from Kevin Phelan, Christopher Vaughan and the Applicant. Mr Richardson said that he had videos of conversations with Kevin Phelan and Christopher Vaughan stating that money had been given to Michael Lowry.
In 2002 also, William Fry, solicitors, acting for Mr Denis O’Brien, senior, wrote a number of letters seeking an explanation for a line in a FAX dated 11th August 1999 from Mr Aidan Phelan to Mr Kevin Phelan. This document was headed, “Doncaster Project” and discussed some outstanding matters. Heading No 7 of the FAX read: “ML Kevin Phelan to refer all queries regarding Doncaster to Aidan Phelan.” William Fry, in a letter of 2nd August 2002 said: “We interpreted this (and we are perfectly prepared to be told that this interpretation was incorrect) as a possible indication that Mr Lowry was, in fact involved in some way in the Doncaster Rovers transactions.”
Counsel for the Appellant, Mr Eoin McGonigal, Senior Counsel, submits that, assuming the Doncaster Rovers Football Club transaction could amount to a “payment” to Mr Lowry, the Tribunal has no power to investigate events occurring after the adoption of the Terms of Reference. Paragraph e) uses the past tense: it refers only to “substantial payments” which “were made.” Section 1(1) of the Tribunals of Inquiry (Evidence) Act, 1921 authorises the establishment of a tribunal “for inquiring into a definite matter … … of urgent public importance……” This could not refer to a future matter. In particular, Mr McGonigal submitted that the Tribunals of Inquiry (Evidence) (Amendment) Act, 1998 inserted a new section 1A after section 1 of the 1921 Act, which permits a Tribunal to request an amendment to its Terms of Reference. The Respondent could and should have availed of this procedure and should have asked the Houses of the Oireachtas, as has been done in the case of another Tribunal, to amend the Terms of Reference so to enable it to inquire into the Doncaster Rovers Football Club matter.
The Appellant submits, in support of the second ground for judicial review that the Respondent was not entitled to proceed to hold public hearings in respect of the Doncaster Rovers Football Club matter on the basis of the evidence available. In accordance with the Terms of Reference, the Tribunal is requested to carry out investigations using all its powers and, where necessary to do so in private in order to: “determine whether sufficient evidence exists in relation to any of the matters referred to above to warrant proceeding to a full public inquiry…” Mr McGonigal submits that the Tribunal has no “evidence” before it which would justify proceeding to public hearings. The documentary evidence in relation to the transaction contains no support for an interest of Mr Lowry in the Doncaster Rovers Football Club transaction. The persons capable of confirming directly whether or not Mr Lowry has an interest in Doncaster Rovers Football Club are Mr Lowry himself, the Appellant, and Mr Denis O’Brien, Senior. Each of these persons has denied that fact and has communicated this denial to the Tribunal. The “evidence” of Mr Vaughan and of Ms Ruth Collard is, at best, hearsay. Mr Vaughan is not, in any event, available to give evidence before the Tribunal. Nor is Kevin Phelan. In these circumstances, Mr McGonigal, while accepting that he must establish that the decision of the Respondent is irrational in the sense of the decisions in The State (Keegan) v. Stardust Compensation Tribunal [1986] I.R. 642 and O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 93, says that there is no sufficient basis for that decision.
The Respondent’s case
Mr Shane Murphy, Senior Counsel for the Respondent addressed the first or temporal issue. He submitted that the approach of the Appellant was fundamentally flawed. In the first instance, it is for the Respondent to interpret the Terms of Reference. They oblige the Respondent to “inquire” urgently into specified matters of urgent public importance. Paragraph e) covers payments made during “any period when [Mr Lowry] held public office.” For this purpose, it is common case that the status of a member of Dáil Eireann is that of a holder of a public office. There is no literal temporal limitation in either paragraph e) or g). In this respect, these paragraphs can be contrasted with those parts of the Terms of Reference which required the Tribunal to inquire into payments made to Mr Haughey, in whose case specific dates are prescribed. The expression “whether any payments were made” in paragraph e) should be read together with the reference in paragraph g) to “any person making a payment referred to in paragraph e).”
More generally, the Respondent states in his written submissions that the Appellant’s contentions are based on an erroneous and artificial reading of the Terms of Reference and that they would fundamentally undermine the objectives of establishing the Tribunal.
Mr Brian Murray, Senior Counsel for the Respondent, addressed the second issue, namely whether the decision of the Tribunal was unreasonable by reason of the absence of sufficient evidence to justify proceeding to public hearing in respect of the Doncaster Rovers Football Club matter.
Mr Murray criticised the approach of the Appellant as being based on a misinterpretation of the words, “sufficient evidence” as used in paragraph i) of the Terms of Reference and quoted above. In that context the expression does not connote legally admissible evidence for the purpose of civil proceedings or for the purpose of constituting proof at a hearing before the Tribunal. Still less does it mean evidence that would tend to sustain an allegation that, for present purposes, Mr Lowry had or has an interest in Doncaster Rovers Football Club. Furthermore, it is not the duty of the Tribunal, at the stage of deciding to proceed to public hearing, to weigh conflicting pieces of evidence.
According to Mr Murray, the word “evidence” in the present context refers rather to “information” which relates to the subject-matter of the Tribunal’s inquiries. The purpose of the investigative stage, which, as envisaged by the Terms of Reference, may be conducted in private, is to enable the Tribunal to discover whether there are grounds which warrant a public inquiry. At the latter stage, the materials gathered at the investigative stage will be put in evidence and only then will their evidential status and weight be determined.
For the purpose of this part of the case, Mr Murray drew the attention of the Court to a substantial body of information, some of it the subject of evidence at hearings, some of it evidence in the sense, already mentioned of “information.” The Tribunal has already conducted lengthy hearings concerning the conduct of the GSM license process and has inquired in detail into the financial affairs of Mr Lowry. The Respondent has not, at this stage, reached any conclusions or made any findings in respect of these matters. Much of this material has been presented to this Court in the form of an opening statement of counsel for the Tribunal at a public hearing on 22nd May 2001. Counsel explained that “the information……will involve examining material concerning relationships, connections or dealings between Mr Lowry and a number of individuals against a background in which some of these individuals and Mr Lowry were involved in a competition to operate what has come to be known as the second GSM license.”
This material relied upon for this purpose includes the following.
A number of financial and property transactions in England appeared to involve Mr Lowry. Prior to the emergence of the Doncaster Rovers Football Club matter, these related principally to properties at Mansfield and Cheadle, though these actually post-dated the Doncaster Rovers matter. Individuals variously connected directly or indirectly with these matters were the late Mr David Austin, Mr Aidan Phelan, Mr Kevin Phelan, Mr Denis O’Brien and Mr Christopher Vaughan. Mr Vaughan acted as Mr Lowry’s solicitor in these matters.
The Tribunal had inquired into a property purchased by Mr Lowry at Carysfort in Dublin. The Tribunal later discovered that Mr Lowry had received a loan for work on this property. The sum appeared to be in the sum of £147,000 and to have come from an off-shore account of Mr Austin in the Channel Islands and to be paid into an off-shore account of Mr Lowry in the Isle of Man. The Tribunal had information that the money used to fund this payment represented the proceeds of sale of property which the Appellant had purchased in Spain from Mr Austin.
The Mansfield transaction was a joint venture between Mr Lowry and Mr Aidan Phelan, an associate of the Appellant. A sum of £300,000 sterling used by Mr Phelan to fund his part of the transaction appeared to have been sourced from an account of the Appellant at a bank in London.
The Tribunal has also already conducted public hearings into the payment of a sum of US$50,000 from the Norwegian company Telenor via Mr Austin to the Fine Gael party. Mr Lowry was chairman of the trustees of the Fine Gael party and was also acquainted with Mr Austin. On the other hand, he has denied that he had any contemporaneous knowledge of this payment.
It is very important to emphasise that not only has the Tribunal not reached any conclusions regarding whether any of these matters involved “payments” for the purposes of the Terms of Reference but that they are, together with a number of other matters of detail, which it is unnecessary to relate, placed before the Court as constituting “information” available to the Tribunal at the time of the decision of 27th May 2004 which may justify the decision to proceed to public hearing on the Doncaster Rovers Football Club matter.
Conclusion
There is no dearth of authority on the relationship between the courts and the conduct by the Tribunals of inquiry of the inquiries required of them by the Oireachtas. The Courts will intervene where there is a real apprehension that a tribunal is in danger of departing from the fundamental requirements of fairness and justice. A good example is the recent decision of this Court in [O’Callaghan]. On the other hand, the courts are notably slow to intervene in matters which are essentially within the scope of the tribunal’s own judgment and discretion. I stated in my own judgment of 12th May 2005 in this same matter:
"It is well established by a long line of authorities of recent years in dealing with the various tribunals of inquiry that the interpretation of the Terms of Reference is a function of the Tribunal and not for the courts and, furthermore, that it is entirely a matter for the Tribunal to decide when and whether to conduct private investigations or to proceed to public hearings. Counsel for the Tribunal referred in particular to Goodman International and another v Mr Justice Hamilton and others [1992] 2 I.R. 542; Haughey and others v Mr Justice Michael Moriarty [1999] 3 IR 1; Redmond v Mr Justice Feargus Flood [1999] 3 I.R. 79; Bailey v Mr Justice Feargus Flood (High Court unreported 6th March 2000)."
The Appellant’s claim that the Terms of Reference of the Tribunal are temporally limited to matters occurring before and not after the establishment of the Tribunal presents itself firstly and naturally for consideration. The following is the question: is the Tribunal empowered to inquire into the Doncaster Rovers Football Club transaction, assuming that its earliest manifestation occurred after its establishment?
This proposition must first overcome the obstacle that, as is well established, it is for the Tribunal, in the first instance,) to interpret its own Terms of Reference (see Haughey v. Moriarty [1999] 3 IR 1.
Accepting, nonetheless, that the Court may review such an interpretation, when, as a matter of law, it is clearly wrong, I believe that the answer is to be found by reading paragraphs e) and g) of the Terms of Reference in the context of the factual background already established. They cannot be read in isolation from the material facts of the case. The Tribunal is inquiring in reality, when these two provisions are read together, into whether any payments, as defined, were made to any holder of any public office arising from the award of the second GSM license. This inquiry originates, therefore, with that decision made by Mr Lowry, when, as paragraph g) envisages, he held a “ministerial office.” Mr Lowry made that decision prior to the establishment of the Tribunal. His tenure as a minister also ended prior to that date. Those aspects of the inquiry occurred prior to the establishment of the Tribunal.
Paragraph g) postulates, in addition, a decision made by virtue of a “Ministerial office” which also confers a benefit on a person. For present purposes, it can be assumed, though it is a matter for the Tribunal to decide, that the Appellant has benefited from such a decision made by Mr Lowry. The inquiry, for present purposes, is concerned with whether the Appellant is also a person “making a payment referred to in paragraph (e)…” There is no temporal limit, expressed in this language, on the making of the payment, though the words refers back to paragraph e).
The Appellant’s case is that the words used in paragraph, namely “whether any substantial payments were made…” [emphasis added] connote the past. This argument presumes past events by reference to the date of the Terms of Reference. This seems to me to be a slender basis for such a large proposition. From what date do the words speak? Why should they not speak from the date of the actual conduct of Tribunal’s inquiry?
Undoubtedly, the Terms of Reference must be interpreted in the light of the legislation. The 1921 Act empowers the Oireachtas to establish a Tribunal of inquiry only in respect of “a definite matter……of urgent public importance… That matter must exist at the time of the passing of the resolutions establishing any such Tribunal. I believe that the fact of Mr Lowry’s tenure of the office of Minister for Transport, Energy & Communications and his making of the important decision concerning the second GSM license, combined with other information available to the Oireachtas, constituted such “a definite matter…” It provided a basis for inquiring into any payments made to Mr Lowry which might be shown to be linked to that decision.
The question then is whether the Tribunal was limited from its establishment to inquiring only into payments already made at the date of its establishment. I do not believe it was. Paragraph e) of the Terms of Reference contains no limitation as to the time of the making of any “payments.” In this, it is true that it may be contrasted with those parts of the Terms of Reference which concern Mr Haughey, though I would not regard that point as decisive. I prefer to look at the language of paragraph e) and its relationship with paragraph g). The former paragraph limits inquiry to payments made to Mr Lowry while he held “held public office.” The decisive point, in my mind, is that paragraph g) authorises inquiry into whether a decision was made so as to benefit a person “making a payment referred to in paragraph (e)…” I do not believe that the language of these two paragraphs restrict the powers of the Tribunal to inquiring into payments made before its establishment. Furthermore, I believe that any such limitation would not be consistent with the objective of inquiring into payments possibly made to a person who formerly held ministerial office and made by a person who benefited from such a decision. Clearly, such payments would necessarily be corrupt, but they might be made at any time whether before or after the making of the decision.
It remains to consider whether the decision of the Respondent of 27th May 2004, to
Proceed to public hearing in respect of the Doncaster Rovers Football matter was
unreasonable. Mr McGonigal rightly accepted that, in order to succeed on this ground, he must satisfy the Court that it was irrational in the sense explained in the decisions of this Court in State (Keegan) v Stardust Compensation Tribunal [1986] I.R. 642 and O’Keeffe v An Bórd Pleanála [1993] 1 I.R. 39. In those cases the Court was merely giving effect to the outer limit on the judicial role in reviewing decisions of administrative bodies or bodies exercising designated powers. The courts act as a check on the legality of decisions; they control excess of jurisdiction; they demand respect of fair procedures. Otherwise, they are limited in their power to trespass on the zone assigned to those bodies, save in the such cases as were described, with the agreement of all members of the Court, by Henchy J at page 658 of his judgment in the Keegan case:
“I would myself consider that the test of unreasonableness or irrationality in judicial review lies in considering whether the impugned decision plainly and unambiguously flies in the face of fundamental reason and common sense. If it does, then the decision-maker should be held to have acted ultra vires, for the necessarily implied constitutional limitation of jurisdiction in all decision-making which affects rights or duties requires, inter alia, that the decision-maker must not flagrantly reject or disregard fundamental reason or common sense in reaching his decision.” Finlay C.J., in the later case of O’Keeffe, reiterated the correctness of the above approach and added that “the circumstances under which the court can intervene on the basis of irrationality with the decision-maker involved in an administrative function are limited and rare.” He went on the mention the negative aspects of the limits thus proclaimed, stating:
“The court cannot interfere with the decision of an administrative decision-making authority merely on the grounds that (a) it is satisfied that on the facts as found it would have raised different inferences and conclusions, or (b) it is satisfied that the case against the decision made by the authority was much stronger than the case for it.”
These decisions do not represent an abdication of judicial power. Henchy J spoke of “the necessarily implied constitutional limitation of jurisdiction in all decision-making…” The Courts will, of course, always have regard to the context of a decision, the statutory purpose of the body concerned and its duties and, where appropriate, the need to have regard to the rights or interests of individuals or categories of individuals, whose interests it is the object of legislation to protect. (see White v Dublin City Council and others [2004] 1 IR 545.) It is, therefore, necessary to consider the nature and extent of the discretion conferred on the Respondent by the Terms of Reference, which provide the context in the present case.
The Appellant concentrates his fire on the notion that, for the purposes of paragraph i) of the Terms of Reference, the Respondent is obliged to “determine whether sufficient evidence exists ……… to warrant proceeding to a full public inquiry.” However, paragraph i) must be explained by reference to its statutory context. It is implicit in the Appellant’s submissions that the Tribunal must, firstly, conduct investigations in private in relation to any particular matter and only then decide whether to hear evidence in public. It is true that the Terms of Reference allow and even encourage the Tribunal to follow that procedure. However, the Terms of Reference also recognize that it must conduct its inquiries in a manner “consistent with the provisions of the Tribunals of Inquiry (Evidence) Acts……” It may use “all the powers conferred on it under the Acts …” which includes private investigations “where appropriate.”
When one considers what those powers are, one discovers both that a Tribunal’s coercive procedural powers are limited to the conduct of public hearings and that, by corollary, firstly, Tribunals cannot compel witnesses to give evidence at private inquiries, and, secondly, that the Courts do not have the power to compel a Tribunal to conduct a private hearing. The Tribunals of Inquiry Acts primarily envisaged that inquiries would be conducted only in public. They were to be public inquiries. But it became obvious that, in practice, it was necessary for Tribunals to gather material for presentation at public hearings and, by extension to prepare in private, through the work of its own counsel, statements of witnesses to be presented at public hearings. Tribunals had no powers, however, to compel witnesses to give evidence at such private hearings. It was understandable that Tribunals would, in this way, commence to sift out matters which would not warrant public inquiry. This might be simply because there was no evidence available to warrant moving to the public stage. At the same time, it could arise that serious allegations were made which were without any shred of credibility. In such cases, a Tribunal would protect the good names of persons obviously falsely accused by not going public.
In Redmond v Flood [1999] 3 I.R. 79, this Court refused leave to apply for judicial review, inter alia, of a decision of a Tribunal to proceed to public inquiry. The applicant had submitted that he should have been allowed “an opportunity to be heard in relation to the sufficiency of the evidence against him before deciding to proceed to a public inquiry.” Hamilton C.J., speaking for a unanimous Court and rejecting arguments based on the judgment in Haughey v. Moriarty, cited above, said:
“An inquiry under the Tribunals of Inquiry (Evidence) Act, 1921, is a public inquiry. The Court in the passage quoted [from Haughey v. Moriarty] accepted that it was proper for a tribunal to hold preliminary investigations in private. This would enable the Tribunal, inter alia, to check on the substance of the allegations and in this way would protect the citizens against having groundless allegations made against them in public. But the Court was not suggesting that the tribunal should proceed to a public inquiry only if there was a prima facie case or a strong case against a particular citizen. It was suggesting that the allegation should be substantial in the sense that it warranted a public inquiry. The Tribunal is not obliged to hold a private inquiry before proceeding with its public inquiry.” The other side of that particular coin was that, as already stated, a Tribunal has no power to compel witnesses to give evidence in private. In Lawlor v Mr Justice Feargus Flood [1999] 3 I.R. 107, the facts were that the sole member of a Tribunal had made orders directing the applicant to attend for questioning before counsel for the Tribunal, to produce documents and to swear an affidavit. On this issue, Hamilton C.J. stated, at page 132:
“The principal powers of the Tribunal are to enforce the attendance of witnesses; to provide for their examination before the Tribunal and to compel the production of documents. It may well be that some citizens may volunteer the supply of statements of evidence or other documents to the Tribunal. It may also be that some witnesses faced with the prospect of a subpoena from the Tribunal may prefer to furnish a statement or documents to the Tribunal's solicitor or his clerk. The Tribunal may be prepared, initially, to accept from a potential witness a list or affidavit of documents. All these are matters for arrangement between the Tribunal and the witnesses concerned should it appear practicable. But when it comes to the formal exercise by the Tribunal of its powers to examine witnesses this must be done by the Tribunal itself and, except as provided by law, must be done in public.”
I believe that this brief citation from the authorities on the topic provides the basis for resolution of the questions raised by the Appellant. The following points are relevant.
The first, and in a sense, the most important point relates to the meaning of “evidence” as that term is used in the Terms of Reference. It is easy to understand and sympathise with the Appellant’s apprehension, if that word connotes actual, tangible and legally admissible evidence of the truth of the suggestion, to the contrary of his own strenuous denials, that Mr Lowry had or has an interest in the Doncaster Rovers Football Club, a matter in which the Appellant had the principal interest. However, I am satisfied that the expression “evidence” approximates more closely to “information.” The Houses of the Oireachtas are not required to have any evidence before they establish a Tribunal of inquiry, but rather “a definite matter… … of urgent public importance.” The Tribunal is required to inquire into that matter. It cannot be expected to have “evidence” of the very matter into which it is required to inquire. The Terms of Reference are designed to enable the Tribunal to manage and schedule its investigations in a practical fashion. It may use private investigations to gather and to sift. How it does so is a matter for it. Whether public inquiry is warranted is a matter for it. I would, therefore ask whether the Respondent has sufficient information to warrant proceeding to public inquiry.
The second proposition is that the Tribunal is not obliged to weigh and assess the “evidence” available to him before proceeding to public hearing. It needs merely to be “information.” It is for the Tribunal to judge whether the matter is worth pursing. It must be remembered that the Houses of the Oireachtas have given it a mandate to inquire. He is not obliged to consider whether the evidence is more or less likely to bear out any particular proposition. On the other hand, I believe that, at one point, Mr Murray put the Tribunal’s case rather too strongly, when he submitted that the Tribunal was not even entitled to weigh up whether the evidence, in the sense of information, available to him was sufficient in the light of other very strong evidence (such as the clear denials of the Appellant and Mr Lowry of any interest of the latter). Although I would allow the Tribunal rather more latitude, I am satisfied that the Respondent was not obliged, on the facts before this Court, to balance the information, such as Mr Vaughan’s letter, suggesting Mr Lowry’s involvement in the Doncaster Rovers Football Club transaction, against the absence of any documentary evidence of title coupled with the denials of the principals.
The third proposition, which is an extension of the first and second, is that the Tribunal does not require anything in the nature of a prima facie case for a particular proposition in order to justify proceeding to public hearings. I agree with Mr Murray’s submission that a Tribunal is not required to have before it the sort of prima facie which was formerly required before the District Court could send a person forward for trial on indictment.
In view of my conclusions on these issues, I am satisfied that the Appellant has not made out a case that the Respondent’s decision of 27th May 2004 was unreasonable. Indeed, on the basis of the test which I have applied, it would be extremely difficult to envisage circumstances where a decision of a Tribunal, made in similar circumstances, would be quashed. What is at issue is a preliminary or ad limine decision of a Tribunal to investigate a matter in public. That decision of the Tribunal decides nothing more. The Tribunal has made it clear before this Court, as it was undoubtedly bound to do, that it has determined no issue whatever concerning the possible interest of Mr Lowry in the Doncaster Rovers Football Club transaction. The Tribunal accepts, as it must, that it is obliged to respect the rights of all persons appearing before it to just and fair procedures. In particular, it may rely only on evidence fairly produced which may be contradicted.
It is not necessary and would not be appropriate to comment in any respect on the matters of fact or alleged fact which have been summarized earlier in this judgment. So far as this Court is concerned, none of these matters are established. There is material concerning them which may (or may not) be the subject of evidence before the Tribunal. This Court has to judge only whether the Appellant, for the burden lies upon him, has shown that the decision of the Tribunal to investigate them is unreasonable, i.e., irrational. The material concerning the Doncaster Rovers Football transaction, summarized earlier in this judgment shows at least that a number of solicitors, at different times, had information which appeared to suggest that Mr Lowry had an interest in the transaction. Following investigation by the Tribunal, it may well transpire that there is nothing to back up their concerns. It is quite another matter to say that the Tribunal may not investigate them. By reason of my interpretation of the Terms of Reference of the Tribunal and of the authorities cited by the parties, I do not believe, in view of the information available to him, that it was unreasonable of the Respondent to decide that he should proceed to public hearing in respect of the Doncaster Rovers Football Club transaction.
Consequently, I am of opinion that Abbot J. was correct in his decision to dismiss the application for judicial review and I would dismiss the appeal and affirm the order of the High Court.
JUDGMENT of Mr. Justice Hardiman delivered on the 16th day of February, 2006.
The Moriarty Tribunal was established in September, 1997, eight years and five months or just over one hundred months ago. On the 19th December, 1997, it made a preliminary report, so far its only report. In this, the Tribunal said that it “Intended as a probability to resume its public sittings early in 1998 and to conclude those sittings and furnish its report not later than the 31st July, 1998…”. This estimate of seven months was, for whatever reason, dramatically wrong, already by a factor of fourteen. The expense of all this, though not yet capable of precise calculation, is enormous.
Against that background, the Tribunal wishes to embark on a new “section”, “phase” or “module” (all three words have been used), of its inquiries, relating to the circumstances in which Doncaster Rovers Football Club was acquired by entities connected to the applicant, Denis O’Brien. It wishes to do this under the terms of paragraph (e) of the Terms of Reference, being one of the matters which each House of the Oireachtas declare to be a “definite” matter “of urgent public importance” by resolutions passed in September, 1997. The applicant, a person who has been long compelled to involve himself with the Tribunal’s inquiries says that this is a step too far. The Doncaster Rovers transaction entirely post-dates the establishment of the Tribunal is not within the Terms of Reference. He says that it is not for the Tribunal to expand its own terms and that, although the legislature has provided an easy and straightforward method of having those terms extended by the Houses of the Oireachtas, the Tribunal has chosen to ignore this route. The Tribunal denies this, saying that this new phase is connected in various ways with previous subjects of investigation and is within its Terms.
General.
In this Appeal Mr. O’Brien seeks to set aside the order of the High Court of the 6th October, 2005, whereby he was refused an order of certiorari of the decision of the respondent to proceed to public hearings in respect of the “Doncaster Rovers Football Club” section or module of the proceedings of the above mentioned tribunal. Mr. O’Brien was at first refused leave to apply for judicial review but on appeal to this Court he was granted leave to apply for judicial review on two specific grounds by order of this Court of the 12th May, 2005. These grounds are:“(a) The Terms of Reference of the Respondent do not empower it to investigate transactions taking place after the date of the establishment of the Tribunal and giving rise to payments to Mr. Michael Lowry;
(b) It was not reasonable for the Respondent to determine that there was sufficient evidence before the Respondent at the time of that decision, namely the 27th May, 2004, to warrant proceeding to a full public inquiry in respect of the matter of the involvement of Mr. Michael Lowry in the purchase of Doncaster Rover’s Football Club”.
The High Court refused relief on each ground by order dated the 6th October, 2005. The appellant appeals to this Court.
It is necessary to set out certain features of the background in order usefully to discuss the issues raised on the appeal.
Background.
The Tribunal named in the title hereof (“The Tribunal”) was established by Executive Order dated the 26th September, 1997, pursuant to the Tribunals of Inquiry (Evidence) Acts, 1921 and 1997. Pursuant to the Act, a tribunal with the statutory powers mentioned in it may be established:“Where it has been resolved… by both Houses… that it is expedient that a tribunal be established for inquiring into a definite matter described in the Resolution as of urgent public importance…”.
In this case, the Executive Order recites the passage of Resolutions in identical terms by Dáil Eireann on the 11th September, 1997 and by Seanad Eireann on the 18th September, 1997. The Resolutions.
In so far as relevant, these Resolutions are in the following terms:“Bearing in mind serious public concerns arising from the report of the Tribunal of Inquiry (Dunnes Payments) published on the 25th August, 1997, which established that irregular payments were made to and benefits conferred on certain persons who are members of the Houses of the Oireachtas between the 1st January, 1986 and the 31st December, 1996…
Resolves that it is expedient that a Tribunal be established under the Tribunals of Inquiry (Evidence) Act, 1921, as adapted by or under subsequent enactments and the Tribunals of Inquiry (Evidence) (Amendment) Act, 1979, to inquire urgently into and report to the Clerk of the Dáil and make such findings and recommendations as it sees fit in relation to the following definite matters of urgent public importance:
(e) Whether any substantial payments were made directly or indirectly to Mr. Michael Lowry (whether or not used to discharge monies or debts due by Mr. Michael Lowry or due by any company with which he was associated or due by any connected person to Mr. Michael Lowry within the meaning of the ethics in Public Office Act, 1995, or discharged at his direction), during any period when he held public office in circumstances giving rise to a reasonable inference that the motive for the making of the payment was connected with any public office held by him or had the potential to influence the discharge of such office.
(g) Whether Mr. Lowry did any act or made any decision in the course of any Ministerial office held by him to confer any benefit on any person making a payment referred to in paragraph (e)… or on any other person in return for such payments being made or procured or directed any person to to do such act or make such decision.
_______________________
‘Payment’ includes money and any benefit in kind and the payment to any person includes a payment to a connected person within the meaning of the Ethics of Public Office Act, 1995…
And, that the person or persons selected to conduct the Inquiry should be informed that it is the desire of the House that:“(a) The Inquiry be completed in as economical a manner as possible and at the earliest date consistent with a fair examination of the matters referred to at …”.
The Tribunal was also required “to report on an interim basis”, not later than three months from the date of establishment of the Tribunal or the 10th day of any oral hearing whichever shall first occur, to the Clerk in the Dáil on the following matters:“… the likely duration (so far as that may be capable of being estimated at that time) of the Tribunal proceedings…”.
In pursuance of this latter requirement the Tribunal reported on the 19th December, 1997, as follows:“It was stated at the said sitting of the 31st October, 1997, that the Tribunal intended as a probability to resume its public sittings early in 1998 and to conclude those sittings and furnish its report not later than the 31st July, 1998…”.
This was a period of just over seven months from the date of the interim Report. In fact, a period of some 97 months has now elapsed since that date without the Tribunal having concluded its business.
How the present topic arose.
On the 15th September, 2004, the respondent gave a brief account “of the general nature of the work of the Tribunal” since its last public sitting in early April, 2004. The first matter mentioned was: “… primary attention has been given to preparing the comparatively brief Doncaster related phase in relation to which an opening speech will be delivered shortly”.
The opening speech referred to was delivered on the same day by Mr. Healy S.C., one of the Counsel to the Tribunal. He referred to the Tribunal’s previous examination of property transactions in England, which examination: “…was prompted in the main by information obtained by the Tribunal from Investec Bank or Woodchester Bank as that Bank was formerly known. Around that time the Tribunal had been informed in the course of its private inquiries that the Doncaster transaction concerned Mr. Denis O’Brien exclusively and that there was no connection between the transaction and Mr. Lowry. From the evidence which was given at the Tribunal’s public sittings, there appear to be no connection between Mr. Michael Lowry and the transaction and nothing appeared from the evidence which would have warranted any further scrutiny of the matter whatsoever.
The Tribunal’s further inquiries into the Doncaster Rovers transaction were prompted by an article published by Mr. Colm Keena in the Irish Times on the 11th January, 2003…”.
The other transactions which had been examined formed part of an immensely thorough investigation by the Tribunal into the financial affairs of Mr. Lowry. Quite separately from this, and in relation to paragraph (g) of its Terms of Reference, the Tribunal held an Inquiry into the granting of a GSM Mobile Telephone License to a company with which the appellant is associated. This module lasted 135 days and involved hearing 65 witnesses of whom 17 were Civil Servants. Mr. O’Brien and Mr. Lowry gave evidence in the course of these modules.
It is not alleged on the hearing of this appeal that any evidence existed to suggest that the Doncaster Rovers transaction was in being in any shape or form at the time the Tribunal was set up. Indeed all the evidence suggests that the proposal that Mr. O’Brien should acquire an interest in the football club was first made in 1998. Nor was it suggested that Mr. Lowry had in fact received a payment, as that term is defined in the Terms of Reference, which related in any way to the Doncaster Rovers transaction. But, in the words of Mr. Brian Murray S.C. one of the Counsel for the Tribunal of the hearing of this appeal “There’s a suggestive series of events suggesting an intention to make a payment”. (Emphasis added)
Issues on the Terms of Reference.
Against that background, the appellant’s first ground may be briefly expressed. Is the Tribunal entitled to inquire into any payment made to Mr. Lowry in relation to the Doncaster Rovers transaction, a transaction which post-dates the establishment of the Tribunal? And is the Tribunal entitled to inquire into any intention of making a payment, as opposed to a payment, to Mr. Lowry in relation to that transaction?
The High Court decision.
The High Court (Abbott J.) refused the applicant relief on this ground. He did so on quite a narrow basis, and indeed upheld certain of the applicant’s submissions. He said:“… I do not accept the submissions on behalf of the Respondent that the Tribunal at any time is entitled to inquire into payments allegedly made to Mr. Lowry once the Tribunal is inquiring at a time after the making of that payment however defined within the meaning of the ethics in Public Office Act, 1995 after the date of Resolution appointing the Tribunal. Apart from such a proposition being a contradiction in terms (as submitted by the Applicant) there are sound policy considerations based on the exercise by citizens of their important constitutional rights to earn a living, to associate or not to associate, and other legal and constitutional rights. In addition to the foregoing, consideration is to be taken account of that the exercise of Mr. Lowry of these rights is in context of the exercise of its constitutional rights and duties as a member of Dáil Eireann under the Constitution.
The Courts are bound to interpret the legislation and Resolutions of Dáil Eireann in a manner which is consistent with the Constitution and it would seem to me that, save in the most exceptional cases, the Constitution would not permit the effective supervision of citizens into the future by scrutiny and inquiry of Tribunals. There are of course instances known to the law where a degree of supervision and scrutiny is allowed into the future… However these are areas dealing with the activities and business of persons under a legal disability and different considerations apply. It would seem that, outside of these two main areas, the right to scrutinise and inquire in relation to future acts of citizens by any Tribunal or legal person would in my opinion have to be set out in very clear and detailed terms and not be dependent on a technical use of grammar and circuitry of argument, such as that sought to be relied upon by the respondents in this case…
… I accept on first principles that the Oireachtas could not set up an inquiry in relation to payments to be made in the future if the provenance of such payments is entirely in the future. To suggest otherwise is plain nonsense, that is not to say of course that the Dáil is not free to set up a Tribunal of Inquiry in relation to areas of policies which of necessity involve the extrapolation of past trends and such activities as may be involved in the formulation of policy and decision making of Government Department body to Government Departments, bodies such as the Economic and Social Research Institute, the Central Bank, in all areas of policy and especially the area of Economic Planning and Prediction. However, these areas are clearly not what is envisaged by the Tribunal in this case. Having held that the Tribunal is prevented from inquiring into payments which have a provenance entirely in the future relative to the date of the Resolutions setting up the Tribunal, the question then arises in relation to whether it is open to the Tribunal to inquire regarding alleged payments if they have a provenance which, in the words of Mr. Justice Kearns in his judgment delivered the 12th May, 2005, in the Supreme Court on the Appeal in relation to the issue of leave at page 27 ‘straddles the date on which the Tribunal was appointed and its terms of reference fixed’.
In my view, the Tribunal would on its Terms of Reference be entitled to inquire in relation to payments relating to a transaction which straddles the date on which the Tribunal was appointed and Terms of Reference fixed. This is because of the definition of “payment” noted in the Terms of Reference of the Tribunal by Fennelly J. in the same appeal to the Supreme Court at page 6 of his judgment where he notes ‘the term payment is defined so as to include money and any benefit in kind and the payment to any person includes a payment to a connected person within the meaning of the ethics in Public Office Act, 1995’.
It seems to me that it will put an unduly restrictive interpretation on ‘benefit in kind’ to exclude the benefit of a contract or an arrangement whereby the contract or arrangement might be made prior to the appointment of the Tribunal and the fixing of its terms of reference but the payment, performance or execution of the arrangement or contract could, or might, take place after such appointment and fixing of Tribunal Terms of Reference. Thus I am of the view that the benefits of such ambulatory or executory contracts or arrangements which ‘straddle’ the appointment of the Tribunal and the fixing of its terms of reference are benefits of kind within the Terms of Reference. In other words I consider that the Doncaster Rovers transaction may only come within the Terms of Reference of the Tribunal if the alleged ‘involvement’ of Mr. Lowry is being investigated as an alleged pay off in respect of some matter within the Terms of Reference of the Tribunal which occurred before the date of the appointment of the Tribunal and the fixing of its Terms of Reference. In making this decision I am mindful of the finding of Mr. Justice Kearns in his judgment… that ‘in the present case, no evidence of any sort whatsoever exists to suggest that the Doncaster transaction existed in any shape or form at the time the Tribunal was set up… the transaction in no way straddles the date upon which the Tribunal is appointed and its terms of reference fixed. Every part of it post-dates that event’.
I do not consider that I am bound by that view of the facts as the point was not fully argued in the context it received in the hearing before me and a point not argued is a point not decided. The fact is that the Doncaster Rovers transaction arose in the same context, in terms of a significant overlap of professional personnel and business associates, as the Cheadle and Mansfield Properties transactions already investigated at public hearing at the Tribunal. I am therefore satisfied that the Terms of Reference of the Tribunal empower the Tribunal to proceed as proposed and the public inquiry proposed is within its terms of reference”.
Submissions of the Parties.
On this appeal, the appellant adopted large portions of the judgment of the learned trial judge. These included the proposition that it was generally inadmissible to have a Tribunal which would supervise or inquire into the affairs of citizens into the indefinite future. The learned trial judge, however, found that the investigation into the Doncaster Rovers transaction was permissible on the basis that “it straddled the date upon which the Tribunal was appointed”. The learned trial judge did not consider himself bound by findings to the contrary in the judgment of Kearns J., but the appellants submitted that all of the evidence available, and all of the submissions of the parties on this application, proceeded on the basis that the Doncaster Rovers transaction entirely post-dated the establishment of the Tribunal. It was on this ground that the appellant attacked the decision of the learned trial judge. On this the appellants are undisputedly right: if the Doncaster Rovers issue is within the Terms of Reference it will be so on some basis other than “straddling”.
More generally, the appellant contended that “the Terms of Reference of the Tribunal do not empower it to investigate transactions that took place after the date of the establishment of the Tribunal”. He draws attention to the fact that the terms of sub-paragraph (e) of the Terms of Reference require the Tribunal to inquire into whether any payments “were made”. But the argument is not entirely, or even primarily, a grammatical one. The appellant also relies on s.1(1) of the Act of 1921, quoted above, and draws attention to the fact that, by reason of that provision, any matter to be inquired into must be a “definite” matter and must be expressed by the Houses to be “of urgent public importance”. The appellant says that the Houses could manifestly not have formulated as a “definite” matter an event which had yet to take place at the time of the Resolution before them and equally could not have formed any view as to whether such a hypothetical matter was “of urgent public importance”. In other words, said the appellant, the Oireachtas had no power under the 1921 Act to order an inquiry into a matter, being a “payment” which has not yet taken place. Any other interpretation would do violence to the literal meaning of the Statute.
In this connection the appellant relied on the terms of s.1 of the Tribunals of Inquiry (Evidence) (Amendment) Act, 1998 which amended s.1 of the 1921 Act by the insertion of the following:“Amendment of Instrument by which the Tribunal is appointed.
1A(1) An instrument to which this Section applies (whether made before or after the passing of the Tribunals of Inquiry (Evidence) (Amendment) Act of 1998 shall be amended pursuant to a resolution of both Houses, by a Minister of the Government where the Tribunal…
(a) Has requested the amendment, and
(b) Is satisfied that such amendment would not prejudice the legal rights of any person who has co-operated with or provided information to the Tribunal under its Terms of Reference.
(2) Where an instrument to which this Section applies is so amended this Act shall apply;
(b) This Section applies in a case of Tribunal to which this Act has applied under s.1 of this Act to the Instrument by which the Tribunal is appointed”.
The appellant says that this is the procedure to follow if the perceived logic of a Tribunal’s Inquiry leads it to wish to investigate matters outside the scope of its original terms of reference. It provides certainty as to the power to investigate and ensures that the expense of the new investigation is indeed thought worthwhile by the Houses of the Oireachtas.
The appellant further submits that it is obvious from the September 2004 opening statement of the Tribunal’s counsel and the pleadings in the present case that no “payment” in cash or kind is being investigated, and that there is no suggestion that Mr. Lowry had a direct interest in the Doncaster Rovers transaction. The limitation of the Terms of Reference to “payments made”, he says, is not merely a limitation to payments made at the time of the adoption of the Resolution, but a limitation to “payments” as that word is used in the Resolution and not to a mere intention to pay in the future as a result of some sort of nod and wink arrangement.
It was further submitted by the appellant that the further limitation to payments made “… during any period when [Mr. Lowry] held public office in circumstances giving rise to a reasonable inference that the motive for making the payment was connected with any public office held by him…” constitutes a further restriction on the Tribunal. It is impossible to inquire into the circumstances in which a particular payment was made unless the payment has in fact been made thereby rendering the circumstances ascertainable.
These submissions start with the proposition, which was accepted in the course of the hearing, that the public office relevant to the Tribunal’s inquiries was Mr. Lowry’s ministerial office and that the decision referred to in the Terms of Reference had been identified as the decision to award the GSM licence.
More generally, the appellant submitted that it was for the Oireachtas, and not for the Tribunal, to define the scope of the latter’s operations. In part this is in the public interest: the Tribunal is publicly funded and where it is proposed to investigate a matter which came into existence after the Resolutions of the Houses, it is a matter for the Houses to say whether public money should be so expended. From the point of view of an individual citizen under scrutiny, it is equally for the Oireachtas to say whether this scrutiny is to be extended to a transaction which could not possibly have been within the contemplation of the Oireachtas at the time of the Resolutions, because it lay in the future.
The appellant also relies on the proposition that if the Tribunal may extend the scope of its inquiries on the basis of a perceived, or even an established, logical connection between matters which pre-dated its establishment and matters which post-dated it, there is, in principle, no limit to the scope of this extension and therefore no limit in principle to the scope of the Tribunal’s self determined remit. Apart from the inherent injustice of this state of affairs, a remit so elastic could not possibly be justified having regard to the statutory adjective “definite”, which in part defines the nature of the matter into which a tribunal may inquire.
Submissions of the Respondent.
The respondent says, firstly, that it is mere happenstance that the Doncaster Rovers transaction is being inquired into separately. He concedes that the Tribunal were aware of the transaction since at least 2001 but says it had no reason to suspect a connection between the transaction and Mr. Lowry until the publication of a leaked letter in the newspaper in 2003.
The respondent emphasises the important nature of the Tribunal’s work and the fact that it was established by the representatives of the people to inquire into disturbing matters.
The respondent contends that the only limitation in the relevant paragraph of the Terms of Reference is that to payments made to Mr. Lowry “during any period when he held public office”. Although he has not held ministerial office since 1996, he has at all times remained a member of Dáil Eireann. This, says the respondent, is sufficient to permit of inquiry into payments received or to be received by him while his membership with Dáil Eireann continues.
The respondent conceded that the Doncaster Rovers transaction itself did not in itself “straddle” the periods before and after the passing of the Resolutions. But he contended that it might be regarded as “straddling” that time if one broadened one’s focus from the Doncaster Rovers transaction itself to the more general topic of “attempts to benefit Mr. Lowry”. There was, he said, no logical reason to exclude a payment after the date of the establishment of the Tribunal in respect of a favour done prior to that date. Here, he contended, “There is a suggestive series of events suggesting an intention to make a payment” and this could be inquired into because “a pre-Tribunal promise is within the Terms of Reference”.
The respondent strongly contended on that basis for a “broad” or “purposive” approach to the construction of the Terms of Reference. The fundamental purpose he said, of the establishment of a Tribunal was that of “restoring public confidence in our democratic institutions by having the most rigorous possible inquiry… into the circumstances which have given rise to the public disquiet in the present case”. The appellant’s contentions, he says, is at variance with an analysis of the words of the Terms of Reference “in the light of their purpose”.
It was noteworthy that while the respondent in his written submissions contended for the proposition that it had not conclusively shown that no aspect to the Doncaster Rovers transaction pre-dated the establishment of the Tribunal, this view was not contended for on the hearing of the appeal. The respondent stressed, however, the arguments summarised above in favour of a purposive interpretation of the Terms of Reference and strongly urged that the Doncaster Rovers transaction showed an overlap or coincidence of persons and professional advisers with other transactions undoubtedly within the Terms of Reference, or which had been inquired into without objection.
It was not submitted by the respondent that the Court lacked power to examine and construe the Terms of Reference of the Tribunal. In Haughey v. Moriarty [1999] 3 IR 1 it was held that a party impugned before a Tribunal was entitled to have an explanation of the Terms of Reference: the plaintiffs there were granted a declaration that the sole member of the Tribunal of Inquiry is obliged to explain to the plaintiffs the Tribunal’s interpretation of its Terms of Reference insofar as they relate to the plaintiffs. It was also accepted that that explanation might not be a final one, in which event the Tribunal would be obliged to explain “any further interpretation it may place on the Terms of Reference in the light of the facts as they may emerge”.
In that case the High Court expressed a strong and reasoned view as to how the Terms of Reference might be interpreted. On appeal, this Court did not find it necessary to embark on that exercise “… because the Court is satisfied that it is not the function of the High Court or this Court to interpret the Terms of Reference of the Tribunal at this stage. The interpretation of the Terms of Reference of the Tribunal is, at this stage, entirely a matter for the Tribunal itself”. (Emphasis added)
The parties affected in that case were entitled to an explanation of the terms for reasons that are obvious. In my view the enormous capacity of the Tribunal to cause to damage to persons many years before any report, the apparently open ended nature of its proceedings, the very great expense and commitment of time required of certain persons compelled to participate and other matters indicated below make it all the more essential that the Terms of Reference of the Tribunal be properly and formally interpreted. Otherwise, an individual compelled to participate in the Tribunal’s hearings or some part of them could find himself or herself in a Kafkaesque scenario of vaguely focussed and apparently unending proceedings. Once this right to an explanation is conceded, as on the authorities it must be, it seems indisputable that a person who complains that the Tribunal has misdirected itself in interpreting its own remit should be entitled to seek relief in the Courts. It is true, as is observed elsewhere, that the Tribunals have been the subject of many challenges, some successful and some not. The “stream of litigation” as it has been called, which this represented has indeed been burdensome to the Courts. It must however be recalled that some of this litigation has permitted individuals, and in one case the Government of Ireland itself, to vindicate their or its constitutional rights against Tribunals which exaggerated their own powers. It must also be borne in mind that the length of the Tribunals, their effect on the reputation of individuals and their huge significance to individuals in terms of financial commitment and the commitment of personal time to the exclusion of other things, have exceeded every rational expectation. The draftsmen of the Act of 1921 would have regarded inquiries on the present scale as inconceivable, and indeed oppressive.
Decision.
The Tribunal is intending to investigate, as a self contained “phase” of its work a transaction which post-dated its establishment. Its attention was drawn to this transaction as a possible subject for investigation as a result of the publication in a newspaper of a leaked letter. This occurred between five and six years after the establishment of the Tribunal. The author of the letter has now flatly and repeatedly denied that Mr. Lowry had or was to have any interest in the Doncaster Rovers transaction.
I believe that the question of whether this particular inquiry is within or without the Terms of Reference of the Tribunal must be resolved by a construction of those terms in their statutory context. A firm distinction must be made between a matter which can be shown within the terms as laid down by the Houses of the Oireachtas on the one hand, and a matter to which it is thought expedient and logical (having regard to the course of inquiries) to extend the terms of the Tribunal. The first issue is now a matter for the Courts, after the Tribunal has made its own interpretation of the terms. The second matter is exclusively one for the Oireachtas if and when the Tribunal seeks an amendment of its terms.
A Tribunal of Inquiry is an extraordinary body, having extraordinary inquisitorial powers. Its public inquiries, even apart from its findings, can have the most serious effect on the reputation of individuals: see for example O’Callaghan v. Mahon & Ors. (Supreme Court, unreported, 9th March, 2005). Moreover, it can be enormously expensive for those summoned before it and enormously demanding in terms of a commitment of personal time. The lengths of certain modern tribunals have grossly exceeded (in the present case already by a factor of fourteen) the original informed estimates of their likely duration. Familiarity with this fact should not make one insensitive to just how disturbing it is, and how much public concern and cynicism is caused by it. And an interval now approaching nine years without any substantive report seems inconsistent with the function of restoring confidence in governmental process. The costs of certain Tribunals themselves have equally grossly exceeded any conceivable original estimate, and that is to speak only of the Tribunal’s own costs, taking no account for the present of the costs of individuals who are or will be entitled to recover them from the public purse. There was explicit evidence in this case of concern in Dáil Eireann itself as to the costs of this Tribunal.
The combination of the related factors of duration and cost with the desire expressed by the Oireachtas for speed and economy in my opinion give rise to legitimate public concern. It also gives rise to large private liabilities all the more distressing to those who have to bear them because they are apparently incalculable. Not even the most pessimistic person involved in the Tribunal could have been expected to forecast, as he considered the prediction in the interim report of seven months duration for the Tribunal that it would have been so grossly exceeded.
The foregoing are not merely matters of comment but matters which, as will be seen below, are suggestive in considering the appropriate approach to the construction of the Terms of Reference.
First, and centrally, there is the statutory context. The only “matters” which can be the subject of a Tribunals Inquiry are “definite” matters expressed by the Oireachtas to be “of urgent public importance”. Both of these criteria must be met. Each must inform the construction of the Terms of Reference. It is clear, in the first place, that the word “definite” must itself be construed to see whether so flexible an interpretation as that for which the Respondent contends is consistent with the “matter” the subject of paragraph (e) being a “definite” one. For such it must be, if the Tribunal is to have any power to inquire it at all.
In my view, this issue depends wholly on a construction of the Statute and the relevant Terms of Reference. A Tribunal of Inquiry may inquire only into definite matters which have been described by each House of the Oireachtas as being of urgent public importance. It is for the Houses to identify the definite matters which it regards as being of urgent public importance. Once this is done the Tribunal may be established to inquire into them. But this work of definition and expression is for the Houses of the Oireachtas. Its interpretation is, in the first place, a matter for the Tribunal itself. In the event that the course of the Tribunal’s inquiries leads it to wish to examine matters which are not within its Terms of Reference, there is an easily operated statutory provision whereby it may seek an expansion of those terms. But that would be a matter for the Houses of the Oireachtas, and not for the Court.
It is convenient here to set out the substance of paragraph (e) of the Terms of Reference, omitting matter which is, for present purposes, merely incidental. Thus edited it reads:“Whether any substantial payments were made directly or indirectly to Mr. Michael Lowry during any period when he held public office in circumstances giving rise to a reasonable inference that the motive for making the payment was connected with any public office held by him or had the potential to influence the discharge of such office.”
(Emphasis added)
One must recall that this sub-paragraph is one of “the following definite matters of urgent public importance” in relation to which each House considered it expedient than a Tribunal be established to inquire urgently into.
Secondly, the “definite” matter isolated and defined in this paragraph is whether any payments were made in the stated circumstances. Quite clearly broader term such as “inducements offered” or “… payments made or promised” or “intended” or “attempted” might have been used, but they were not.
The word definite is derived from the Latin definitus. This is, in technical terms, the past participle of definire, to define. The participle therefore means “defined, set within limits”. The three primary meanings of the term definite are clearly stated or decided, not vague or doubtful; clearly true or real; and having exact and discernable (physical) limits. To define means to state or describe exactly the nature scope or meaning of something or to mark out the limits of something.
There is no meaning or usage amongst the many supplied in the Oxford English Dictionary for the word definite or its derivatives which does not entail the connotation of something clearly ascertained and limited. In my view, this is quite inconsistent, for reasons expanded below, with an interpretation of the Terms of Reference as mandating an open ended Inquiry, requiring only some perceived logical connection with a specific matter which might itself be regarded as lying firmly within the Terms of Reference.
It is important to stress that the reason for this conclusion is not primarily a grammatical one. It is based on the absolute obligation to pay close attention to the words with which the legislature has delimited the circumstances in which a Tribunal with statutory powers may be established. There are a number of limitations which Parliament has thought fit to impose but the primary ones expressed in the Statute are that the statutory powers of a Tribunal must be addressed to a definite matter, that is a matter clearly defined and limited, and that the Houses must have come to the view, in respect of such matter, that it is one of urgent public importance.
There is clearly an imperative connection between the requirement of definiteness and that of expressed urgency. The Oireachtas has made a determination of urgency in respect of these matters. That, in my view, is scarcely compatible with a form of inquiry now well into its 9th year. Urgency is quite unattainable unless the matter to be inquired into is definite, in the sense explained above. If it is open ended or liable to broad or purposive interpretation by the Tribunal itself, then no-one can conceivably predict when the Tribunal will finish. This observation, so obvious as to verge on the banal, is unfortunately proved to demonstration by the extraordinary length of the Inquiry in question here.
As one of my colleagues has observed, the Oireachtas has in some cases itself set the Terms of Reference of Tribunals very broadly. Clearly a mandate to inquire into “[all] allegations…” or into particular matters and “Any matters connected with…the matters aforesaid” will call into being an inquiry of indefinite length. But there are no such general words here.
The words actually used here in subparagraph (e) define the subject matter of the Inquiry with some clarity. The Tribunal is to inquire into whether any payments were made. That term is defined so as to include benefits in kind: it therefore raises the question whether a transfer of money or monies worth to a relevant person has taken place. It does not extend to an intention to pay or an attempt to pay or an offer to pay or a thought about paying. The Tribunal is further mandated to inquire whether any payment was made in the circumstances set out in subparagraph (e). In my view it is manifestly impossible to consider the circumstances of a payment unless the payment itself is first established as having occurred.
It was expressly stated on the hearing of this appeal that, for practical purposes, the context which any hypothetical payment may have been intended is that of the GSM licence. A very prolonged inquiry into the circumstance in which that licence was granted has already taken place. No report in relation to this module has been published and this is a subject of some surprise to me. If the award was found to be in some sense flawed that would clearly give direction to an inquiry as to whether a corrupt payment was made in relation to it. A finding that the process was in no way flawed would not exclude the possibility of such payment (because, hypothetically, a payment might have been made in the hope of influencing the process and accepted without actually doing so) but a finding to that effect would limit the scope of the payments inquiry. But this has not occurred.
The words of the 1921 Act as amended and of the Terms of Reference are of central importance in this case. The first defines the power of the Houses of the Oireachtas themselves to call for a statutory inquiry: they cannot seek an inquiry with a roving, or open ended, or indefinite remit. The Terms of Reference are the instrument whereby the Houses control the Inquiry for which they have called. The words of the Terms of Reference must be taken to express the intention of the Houses. It is for the Tribunal to work within these terms and not unilaterally to extend them. That power is restricted to the Houses, who have provided an easy process for seeking an extension of the terms if needed. A construction of the Terms of Reference according to the ordinary legal rules of construction is essential if the primacy of the Oireachtas in this area is to be recognised and given effect to.
There have been many statements of the basic canons of statutory construction. The statement of Lord Reid in Pinner v. Everett [1969] 3 AER 257, at 258 commends itself to me as an elegant expression of perhaps the most basic:“In determining the meaning of any word or phrase in a statute the first question to ask always is what is the natural or ordinary meaning of that word or phrase in its context in the statute? It is only when that meaning leads to some result which cannot reasonably be supposed to have been the intention of the legislature that is proper to look for some other possible meaning of the word or phrase”.
In Cross on Statutory Interpretation (3rd edition), Butterworths, 1995, the basic rules of statutory interpretation are stated by the learned author. Pride of place is given to the first, as follows:“The judge must give effect to the grammatical and ordinary, or, where appropriate, the technical meaning of words in the general context of the statutes; he must also determine the extent of general words with reference to that context”.
I do not consider that there is any ambiguity, or any absurdity, in the natural and ordinary meaning of the relevant words of the Act of 1921, the Resolutions of the Houses, and the Executive order.
Another view.
In arriving at a different conclusion, my colleagues have proceeded “by reading paragraphs (e) and (g) of the Terms of Reference in the context of the factual background already established. They cannot be read in isolation from the material facts of the case”. The question has also been raised, in regard to the Terms of Reference, “From what date do the words speak? Why should they not speak from the date of the actual conduct of the Tribunal’s Inquiry?” Finally, referring to the statutory words “a definite matter… of urgent public importance…” it is said that “That matter must exist at the time of the passing of the Resolutions establishing any such Tribunal. I believe that the fact of Mr. Lowry’s tenure of the office of Minister for Transport Energy and Communication and his making of the important decision concerning the second GSM licence, combined with other information available to the Oireachtas, constituted such a ‘definite’ matter. It provided a basis for inquiring into any payments made to Mr. Lowry which might be shown to be linked to that decision”.
It is in these areas that I have the misfortune to differ from my colleagues. It is reasonable to make the nature of that difference quite clear.
Firstly, I believe that the words of the Terms of Reference must be interpreted in their statutory context, and that that exercise must be confined to the statutory words and those of the Terms of Reference. This, I believe, it is necessary in order to pay due regard to the central role of the Houses of the Oireachtas in constituting the Tribunal. I would therefore decline to construe the words in relation to more or less controversial factual matters emerging only after the Tribunal had embarked on the private phase of the Doncaster Rovers module. Apart from any other consideration, I understand this approach to be in accordance with the ordinary method of constructions of forms of words of parliamentary origin: the intention is deemed to be expressed in the words. It is for that reason that, accepting the arguments of the Respondent, I have declined to take account of a subsequent parliamentary debate in order to glean, from what parliamentarians may have said in 2004, what their intention was in 1997. If that material falls to be excluded, so too must any other extrinsic material.
Secondly, I believe that the words of a parliamentary resolution must speak from the date that resolution was passed by the persons who actually passed it. There is no mandate in my view for suggesting that they speak from a later date, that of the actual conduct of the Tribunal’s Inquiry. The words requiring to be construed are parliamentary words, not those of the Tribunal or of anyone who may have spoken to it in the course of its private inquiry. The members of the Oireachtas as such are ignorant of these latter matters. It is in my view inadmissible to construe the terms of a parliamentary resolution of 1997 in terms of what other people may have said and done in subsequent years. Furthermore, if the words are to be regarded as speaking, not from the date on which they were actually spoken, but from some later date during the Tribunal’s investigations, they might just as easily be regarded as speaking from another date, later again, during those investigations and in light of some new allegation made during the course of them. This approach would deprive the words of any specific meaning and indeed allow the meaning to change over time. This would be wholly to undermine parliamentary control of the Tribunal. Thirdly, I cannot agree that the “definite matter.. of urgent public importance” is the fact that Mr. Lowry held the ministerial office that he did or the fact that the GSM licence was granted as it was. In my view this is inconsistent with the actual words of paragraph (e) which describes the relevant “definite” matter as being whether any payment was made in the circumstances set out.
More generally, I do not think that a “broad” or a “purposive” interpretation should be given to the Terms of Reference, as the respondent contended. Nor do I feel, by contrast, that they should be interpreted in a particularly narrow fashion, as might be required in the case of a penal statute. They should be interpreted according to the ordinary meaning of the words which in this case does not give rise to any problem at all. They are the words of the Houses of the Oireachtas. The primacy of the Houses in the establishment and scope of a Tribunal can only be recognised by giving their words their ordinary meaning, and neither more nor less. If the words are construed in an expanded sense, they will be construed so as to include in the remit of the Tribunal matters which, concededly, were outside the scope of the consideration of the members of the Houses, because they had not yet occurred. Arguments to the effect that the ordinary canons of construction of parliamentary language would in this case frustrate the work of the Tribunal have no validity whatever. I have already referred to on several occasions to the very easy route provided by statute for seeking an expansion of the Tribunal’s Terms of Reference if desired. It is for the Oireachtas and not the Courts or, with respect, the Tribunal, to decide whether this extension should take place. Without it, I do not believe that the Doncaster Rovers issue is within the scope of the Tribunal’s inquiries and I would so declare.
In view of that determination I do not consider it appropriate to enter on to a discussion of the second issue.
Conclusion.
I would allow the appeal and grant the relief sought on the first ground on which leave was granted.
