Supreme Court allows appeal, holding Tribunal cannot expand Terms of Reference without Oireachtas resolution.

THE SUPREME COURT

370/2005

Murray C. J.

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

Between:

DENIS O’BRIEN

Appellant

and

MR. JUSTICE MICHAEL MORIARTY (SOLE MEMBER OF THE TRIBUNAL OF INQUIRY INTO PAYMENTS TO MESSRS. CHARLES

HAUGHEY and MICHAEL LOWRY)

Respondent

and

THE ATTORNEY GENERAL

Notice Party

JUDGMENT of Mr. Justice Hardiman delivered on the 16th day of February, 2006.

1. 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.

2. 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.

4. 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”.

5. The High Court refused relief on each ground by order dated the 6th October, 2005. The appellant appeals to this Court.

6. It is necessary to set out certain features of the background in order usefully to discuss the issues raised on the appeal.

Background.

7. 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…”.

8. 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.

9. 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 …”.

10. 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…”.

11. 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…”.

12. 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.

13. 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”.

14. 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…”.

15. 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.

16. 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.

17. 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.

18. 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.

19. 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”.

20. 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.

21. 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”.

22. 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.

23. 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.

24. 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.

25. 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.

26. 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.

27. 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.

28. 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.

29. 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.

30. 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.

31. 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”.

32. 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”.

33. 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.

34. 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”.

35. 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)

36. 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.

37. 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.

38. 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.

39. 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.

40. 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.

41. 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.

42. 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.

43. 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.

44. 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)

45. 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.

46. 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.

47. 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.

48. 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.

49. 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.

50. 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.

51. 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.

52. 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.

53. 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.

54. 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.

55. 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”.

56. 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”.

57. 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.

58. 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”.

59. 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.

60. 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.

61. 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.

62. 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.

63. In view of that determination I do not consider it appropriate to enter on to a discussion of the second issue.

Conclusion.

64. I would allow the appeal and grant the relief sought on the first ground on which leave was granted.