TRIBUNAL OF INQUIRY

(Payments to Messrs Charles Haughey and Michael Lowry) Appointed by instrument of An Taoiseach dated the 26th day of September 1997

Sole Member: The Honourable Mr. Justice Michael Moriarty

SUBMISSIONS ON BEHALF MICHAEL LOWRY T.D.

APPLICATION IN RESPECT OF MR. MICHAEL ANDERSEN’S NON-AVAILABILITY AS A WITNESS

Kelly Noone & Co. Solicitors Taney Hall Eglinton Terrace Dundrum Dublin 14.

PRELIMINARY

1. By letter dated 3rd August 2005, Mr. Michael Heneghan, Solicitor to the Tribunal, wrote to Messrs Kelly Noone & Co. solicitors for Mr. Michael Lowry T.D., indicating that the Tribunal intended to resume its hearings into the circumstances surrounding the grant of the second GSM licence to ESAT Digifone Limited on Tuesday, 20 th September 2005. 2. Mr. Heneghan’s letter included the statement that, insofar as Mr. Michael Andersen was concerned, “…the Tribunal is now proceeding on the basis that for all practical purposes, Mr. Andersen’s evidence will not be available.” 3. The history of the Tribunal’s efforts to arrange for the attendance of Mr. Andersen to give evidence to the Tribunal in Dublin (or indeed to travel to Denmark to arrange for the taking of his evidence there) has been documented fully in enclosures supplied with a further letter of Mr. Heneghan of 22nd August 2005. That letter, like its predecessor, indicated that there would be an opportunity for parties to address the Tribunal by way of submission on Tuesday, 13th September as to the consequences of the non-availability of Mr. Andersen. comprehensive written submissions Lowry on this matter. 4. It is in this context, at the specific behest of the Tribunal, that the following written submission is made on behalf of Mr. Lowry. In short it is submitted that the GSM module should cease forthwith on the basis: (a) That Mr. Lowry’s constitutional rights have been irretrievably breached by the Tribunal in the manner in which it has conducted the GSM module to date;
[1]

Both letters also requested that

be received by the Tribunal by 7th September

2005 in the event that it was wished to make an oral submission on behalf of Mr.

(b)

That the Tribunal has uncovered no relevant evidence, after 131 days of hearings on the awarding of the GSM licence, that could cause it to report in a manner relevant to its Terms of Reference;

(c)

That, as a matter of practicality, the Tribunal is unable to complete the GSM module and make any relevant findings of fact in the absence of Mr. Andersen;

(d)

That, as regards the constitutional requirement for fair procedures, the absence of Mr. Andersen fatally compromises the In re Haughey rights of Mr. Lowry given the manner in which Mr. Andersen has been relied upon by the Tribunal at different stages of the GSM process notwithstanding that he will not now give evidence;

(e)

That there are very clear inferences to be drawn from correspondence from the Secretary General of the Government and from transcripts of recent Dáil Debates that the Tribunal is losing the support of both the Government and the Oireachtas for its work and that this is a powerful consideration in favour of the submission made on behalf of Mr. Lowry.

THE GSM INQUIRY AND THE TERMS OF REFERENCE OF THE TRIBUNAL

5. The Terms of Reference of the Tribunal were approved by Dáil Éireann on the 11th day of September, 1997 and by Seanad Éireann on the 18th day of September, 1997. An instrument establishing the Tribunal was effected on 26th September 1997, almost exactly eight years ago. The Terms of Reference of the Tribunal, are, in relevant part, as follows:“WHEREAS a Resolution in the following terms was passed by Dáil Éireann on the 11th day of September, 1997 and by Seanad Éireann on the 18th day of September, 1997. "Bearing in mind serious public concern arising from the Report of the Tribunal of Inquiry (Dunnes Payments) published on 25 August, 1997, which established that irregular payments were made to and benefits conferred on certain persons who were members of the Houses of the Oireachtas between 1 January, 1986, and 31 December, 1996.

And noting that the said Tribunal established that money was held on deposit in certain Irish banks by offshore banks in memorandum accounts ("the Ansbacher accounts") for the benefit of Irish residents including Mr Charles Haughey, (the history of which deposits is set out in Chapter 6 of the Report of the said Tribunal), And noting further that the Dunnes Payments Tribunal was unable by reason of its terms of reference to investigate the source of the Ansbacher accounts, other than in respect of sums paid by certain persons referred to in the said terms of reference. 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 making the payment was connected with any public office held by him or had the potential to influence the discharge of such office. 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. 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. 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. 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. Whether the Revenue Commissioners availed fully, properly and in a timely manner in exercising the powers available to them in collecting or seeking to collect the taxation due by Mr Michael Lowry and Mr Charles Haughey of the funds paid to Michael Lowry and/or Garuda Limited trading as Streamline

f.

g.

h. i.

j.

Enterprises identified in Chapter 5 of the Dunnes Payments Tribunal Report and any other relevant payments or gifts identified at paragraph (e) above and the gifts received by Mr Charles Haughey identified in Chapter 7 of the Dunnes Payments Tribunal Report and any other relevant payments or gifts identified at paragraph (a) above. And further in particular, in the light of its findings and conclusions, to make whatever broad recommendations it considers necessary or expedient:k. l. m. to ensure that the integrity of public administration is not compromised by the dependence of party politics on financial contributions from undisclosed source for the reform of the disclosure, compliance, investigation and enforcement provisions of company law (including in particular those which relate to directors' duties). for maintaining the independence of the Revenue Commissioners in the performance of their functions while at the same time ensuring the greatest degree of openness and accountability in that regard that is consistent with the right to privacy of compliant taxpayers for enhancing the role and performance of the Central Bank as regulator of the banks and of the financial services sector generally for the effective regulation of the conduct of their members by such professional accountancy and other bodies as are relevant to these terms of reference, for the purpose of achieving the highest degree of public confidence, and for the protection of the State's tax base from fraud or evasion in the establishment and maintenance of offshore accounts, and to recommend whether any changes in the tax law should be made to achieve this end.

n. o. p.

"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 in Public Office Act, 1995. "Person" includes any natural or legal person or any body of persons whether incorporated or not. 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, 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, 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, To report on an interim basis, not later than three months from the date of establishment of the Tribunal or the tenth day of any oral hearing, whichever shall first occur, to the Clerk of the Dáil on the following matters:

ii. iii.

iv.

the numbers of parties then represented before the Tribunal; the progress which has been made in the hearing and the work of the Tribunal; the likely duration (so far as that may be capable of being estimated at that time) of the Tribunal proceedings: any other matters which the Tribunal believes should be drawn to the attention of the Clerk of the Dáil at that stage (including any matter relating to the terms of reference); And that the person or persons selected to conduct the Inquiry should be informed that it is the desire of the House that a. b. 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 it, and all costs incurred by reason of the failure of individuals to co-operate fully and expeditiously with the Inquiry should, so far as is consistent with the interests of justice, be borne by those individuals.

And that the Clerk of the Dáil shall on receipt of any Report from the Tribunal arrange to have it laid before both Houses of the Oireachtas immediately on its receipt." NOW I, Bertie Ahern, Taoiseach, in pursuance of those Resolutions, and in exercise of the powers conferred on me by section 1 (as adapted by or under subsequent enactments) of the Tribunals of Inquiry (Evidence) Act, 1921, hereby order as follows: This Order may be cited as the Tribunals of Inquiry (Evidence) Acts, 1921 and 1979 (No. 2) Order, 1997. A Tribunal is hereby appointed to enquire urgently into and report and make such findings and recommendations as it sees fit to the Clerk of the Dáil on the definite matters of urgent public importance set out at paragraphs (a) to (b) of the Resolutions passed by Dáil Éireann on the 11th day of September, 1997, and by Seanad Éireann on the 18th day of September, 1997. The Honourable Mr Justice Michael Moriarty, a Judge of the High Court, is hereby nominated to be the Sole Member of the Tribunal. The Tribunals of Inquiry (Evidence) Act, 1921 (as adapted by or under subsequent enactments) and the Tribunals of Inquiry (Evidence) (Amendment) Act, 1979, shall apply to the Tribunal. GIVEN under my Official Seal, this 26th day of September, 1997. Bertie Ahern TAOISEACH”

6. The Tribunal sat for the first time on 31st October 1997.

7. On 30th July 2002 (Day 155) the Sole Member announced that there would be full public hearings into the awarding of the GSM Licence to ESAT Digifone. The Chairman described this aspect of the Tribunal’s work as “a Tribunal within a Tribunal.” 8. Public hearings into this aspect commenced on 3rd December 2002 (Day 156) with an opening statement by Mr. John Coughlan SC (“Mr. Coughlan”) that spanned seven full hearing days. In total, the Tribunal has spent some 131 hearing days to date virtually exclusively concerned with the GSM Licence Application, Friday 2nd April 2004 (Day 286) being the last day of evidence devoted to the GSM issue. 9. Mr. Lowry, if not quite welcoming the Tribunal’s decision to commence hearings into the GSM process, at least saw it as an opportunity to finally dispel unfounded rumour and innuendo that had circulated in this connection and been highly damaging to him.

THE CURRENT STATUS OF THE GSM MODULE

10. The delay in completing the public hearings on the GSM licence issue from April 2004, until the proposed resumption later this month, a delay of almost 18 months has never been accounted for by any reason other than the unavailability of Mr. Andersen to give evidence. This consideration alone offers a clear indication of the centrality that the Tribunal must itself afford to Mr. Andersen’s perspective. This is a matter which this submission will later turn to. 11. Mr. Lowry does not doubt for a moment the sincerity of the Tribunal’s efforts to ensure the presence of Mr. Andersen to give evidence. But from his perspective, the long delay in the hearing of the GSM evidence has been entirely unsatisfactory, for a number of reasons: (a) Highly damaging inferences relating to Mr. Lowry were brought into the public domain in the opening statement in the present module in December 2002. At no stage has Mr. Lowry been called upon to rebut the content of the opening

statement or the evidence of the witnesses with which he takes issue. It is submitted that the Tribunal has, by default, failed to afford Mr. Lowry fair procedures in allowing such an inordinate period of time between an opening statement and the completion of evidence in an individual module. Assurances have been afforded to Mr. Lowry’s legal team that he would, logically, be the final witness in the GSM module so that he would be fully appraised of the evidence of others by the time he himself was to give evidence. However, in circumstances where almost three years has elapsed since the opening statement of Mr. Coughlan, the Tribunal has, it is submitted, failed to vindicate Mr. Lowry’s constitutional right to a good name; (b) Mr. Lowry’s undoubted In re Haughey right to cross-examine other witnesses in this module has been rendered virtually obsolete by the manner in which the Tribunal has conducted the present module. For instance, Mr. Eoghan Fitzsimons SC had concluded his cross-examination of Mr. Denis O’Brien on 11th December 2003 (Day 257), when the Tribunal rose for the Christmas recess. Counsel for Mr. Lowry was due to cross-examine Mr. O’Brien at that point. Although it was understood that Christmas was intervening at that stage and it might be some weeks before Mr. O’Brien returned to complete his evidence, it is submitted that it is inexcusable that the Tribunal has permitted a situation to develop whereby Mr. O’Brien’s evidence has been in limbo since December 2003 with Mr. Lowry’s right to cross-examine him postponed for that period of time. Similarly, Mr. Tony Boyle’s evidence was adjourned without being completed and without any opportunity on the part of Mr. Lowry to cross-examine Mr. Boyle. That occurred on 24th March 2004 (Day 180) and Mr. Boyle has yet to be recalled to give evidence to the Tribunal. It is submitted on behalf of Mr. Lowry that the In re Haughey right to confront and cross-examine, most recently reiterated by the Supreme Court in O’Callaghan v. Mahon & Ors. Unreported, Supreme Court, 9 March 2005 must mean something very different to a delay of in excess of a year between the giving of direct evidence and the opportunity to cross-examine. Of the three judgments in Maguire v. Ardagh [2002] 1 IR 385 that specifically addressed the issue of the proposed procedure of the Oireachtas Committee for

the postponing of cross-examination until after the conclusion of the direct evidence, all three criticised the procedures proposed by the Committee. Keane CJ stated at 550 “It was, however, in my view, not permissible for the sub-committee to adopt a
procedure which meant that cross-examination in respect of crucial matters would be deferred until after other witnesses had given evidence, a practice which would serious erode the value of cross-examination as it has been traditionally understood.”

McGuinness J. stated at 646 “As regards cross-examination, clearly any court and any inquiry must have the
right to control cross-examination, for instance both as to relevance and as to length. But Dálaigh C.J. has laid great stress on the importance of crossexamination and it does not seem to me that a cross-examination so limited in time and even more damagingly, postponed until after the completion of all the evidence-in-chief, could adequately meet the standards set by this Court In re Haughey. [1971] I.R. 217.”

Hardiman J. stated at 707
“It must be firmly understood that, when a body decides to deal with matters as serious as those in question here, it cannot (apart from anything else) deny to persons whose reputations and livelihoods are thus brought into issue, the full power to cross-examine fully, as a matter of right and without unreasonable hindrances. This, of course, is not to deny to any tribunal the right to control prolixity or incompetence if that is manifested. There was no question of anything of this sort in this case.”

Here, the Tribunal has permitted a situation to arise where witnesses have had their cross-examination postponed for periods in excess of a year. It is submitted that this is self-evidently a breach of the right to fair procedures, and it is not understood how the Tribunal proposes at this late stage to remedy this infringement of Mr. Lowry’s constitutional rights. (c) Mr. Lowry’s ability to offer effective and accurate evidence, like that of any other witness, is inevitably eroded by the passage of time. Mr. Lowry was informed by Mr. John Loughrey, the Secretary General of the Department on 25 th October 1995 that the ESAT Digifone consortium were unanimously recommended by the GSM Project Group as the winning bidder who the Minister should enter into licence negotiations with. Thus, Mr. Lowry, if he gives evidence is to be probed on his recollection of events of a decade ago and longer. Mr. Lowry has at this

stage formed genuine concerns as to the ability of the Tribunal to investigate events at such a temporal remove; (d) Mr. Lowry, ever since the Tribunal was established in September 1997, has remained a public representative, as T.D. for Tipperary North which constituency he has in fact represented in Dáil Éireann consecutively since 1987. He was appointed Minister for Transport, Energy and Communications on 15th December 1994 and he resigned this office on 30th November 1996. The fact that the Tribunal endures eight years after its establishment, nine years after he left Ministerial Office is a source of dismay to Mr. Lowry, who has had to continue to represent his constituents and offer himself for re-election with the Tribunal still sitting in judgment over him for all of this time; (e) Mr. Lowry and his lawyers, given that he for some considerable time has been unable to pay his legal bills are put under enormous strain and disadvantage relative to all other parties appearing in the GSM module, by virtue of the extraordinary delay in its completion. The Tribunal’s Legal Team has been paid almost €15,000,000 in legal fees to date.[2] Telenor, Mr. Denis O’Brien, Mr. Dermot Desmond and the Department of Communications itself all have resources that can be counted in the hundreds of millions with which to discharge their legal bills. Mr. Lowry does not have that luxury, and it is submitted on his behalf that a process which has left him with a smaller and almost unpaid parttime legal team for a period of eight years has rendered him at a disadvantage relative to every other party appearing in the GSM licence module. There is ultimately a question as to whether the procedures adopted by the Tribunal that have caused it to extend to a period of eight years, with no end in sight, cumulatively amount to deprive Mr. Lowry of a right of effective legal representation. 12. Before turning to the specific effect of the non-attendance of Mr. Andersen, it is submitted on behalf of Mr. Lowry that the GSM module should have been concluded long ago by the Tribunal as the overwhelming weight of evidence has been that Mr. Lowry did not interfere and, indeed, could not have interfered with the outcome of the process.

13. It is proposed at this point to rely on particular sections from the evidence of the then Secretary General of the Department, Mr. John Loughrey, the Chairman of the Project Group, now an Assistant Secretary, Mr. Martin Brennan. Mr. Brennan’s evidence On 18th December 2002 (Day 164) Mr. Brennan said to Mr. Jeremiah Healy SC (“Mr. Healy”) the following:
“My abiding impression is that I had a Minister who wanted this to come out with the right answer and on time, and that he had – he showed no interest whatsoever in any application or in preferring any application. I can’t recall a single time at any time that I had the impression that he, say had a favourite or that he had an interest in the result other than having a result which – and he was keenly interested in having competition in the sector.”

The following exchange between counsel for Mr. Lowry and Mr. Brennan on Wednesday, 12th February 2003 (Day 182) speaks for itself:
“Q. A. Q. A. Q. Your evidence, anyway, Mr. Brennan, is that, if I have you right, you don’t believe then that Minister Lowry interfered with the adjudicative process at all in any respect? Correct You don’t believe that it was possible that Minister Lowry could have interfered with the adjudicative process in any respect? Correct. And as somebody who is now an assistant secretary of a government department, an extremely experienced civil servant, I take it that you’d accept that the work you did, that you are now here giving evidence about, was perhaps one of the most significant, if not the most significant, responsibilities that you have been entrusted with in your professional career? I think that’s true, yeah. And you are effectively – and I don’t mean to lead the situation any more than it already is, but you are effectively, following on from what Mr. McGonigal has suggested to you, staking your professional reputation on a finding that there was no interference in the process and that you are here in quite clear terms standing over the work of the Project Group that you chaired; isn’t that all correct? Yes, that’s correct.”

A. Q.

A.

Mr. Loughrey’s evidence Mr. Loughrey, then the Secretary General of the Department, gave evidence that Mr. Brennan came to him on the morning of the 25 th October 1995 and that a conversation

ensued. A sequence of his evidence on 20th February 2003 (Day 187) in reply to Mr. Coughlan is instructive:
“A. …..But one thing (Mr. Brennan) assured me on was, we have a unanimous verdict. I remember the unanimity bit very clearly. Now, it wouldn’t have bothered me frankly. It mightn’t have even surprised me if it hadn’t been a unanimous decision, I wasn’t looking for a unanimous decision. I was just looking – if there was a critical mass in the group that favoured one option, that would have been sufficient. But I remember, recalling him saying “we have unanimity”, and that’s what stuck in my mind. Q. And can you remember what happened then? A. Yes, once again, and this is something that I mentioned to the Chairman at the very outset actually, it’s very easy to look at the Tribunal documentation and to rationalise. But to the best of my memory I did what I always do in circumstances like this: Carry a piece of paper. So in other words, I dictated a short note and brought it under my arm, so to speak and went straight to the Minister’s room. Q…….(the note was then read out by Mr. Coughlan) “Minister, The process in selecting the most qualified application for exclusive negotiation with the intention of awarding a second licence for mobile phone operation is now complete. I am fully satisfied that the process in selecting the potential holder of this licence was carried out in a scrupulously fair and professional way. The process was cleared by the EU Commission, and the independent Danish consultants acted at all time with expert professionalism and disinterest. The project steering group comprised senior officials of this Department and the Department of Finance. Their selection was unanimous.” Is that the note that you think you would have prepared? A. Q. A. Q. A. This is the note. And then brought to the Minister? Yes. And do you believe, or what do you understand – sorry, what do you remember happening then? I am trying to recall whether the Minister was surprised or not, but Michael Lowry, I am sure he wouldn’t forgive me saying so, doesn’t show a range of, a great range of expression in terms of reaction. And once again if this is, if this sounds personal it’s not meant to be, he doesn’t show either elation or disappointment in any great measure. So I am trying to recall whether he showed surprise or not, and I can’t so recall. I don’t believe I can say he showed surprise or any lack of surprise, because as I say, the range of his expression is admirably limited. So from that point of view, is – but he said, I think my impression of the meeting was, let’s get the show on the road. That’s a colloquialism I know, but that would probably encapsulate his attitude.”

Later, in reply to counsel for Mr. Lowry on 27th February 2003 (Day 191), Mr. Loughrey gave the following evidence.
“Q. …..Mr Lowry’s position, in general terms, in respect of the GSM licence, is that he relied on the advice of the Project Group and on his civil servants, including you, to announce the result and to award the licence. In general terms I take it that you accept that position to be correct. I accept that position to be correct, yes I do. And Mr. Lowry’s position is that he didn’t interfere in any way with the result or the outcome of the process. And I think further, that he couldn’t have interfered with the outcome or the result of the process. Do you accept that to be the case? I can confirm both of those propositions are correct, yes. ……. ……certainly accepting that you weren’t involved in the GSM process on a dayto-day basis, but from the knowledge that you have of it, and from the knowledge that you now have of it, and from the involvement you did have in it at the time, am I correct in saying that that you are standing over the integrity of this process cumulatively in the effect of your evidence to the Tribunal? Yes, I am totally standing over this process, yes.”

A. Q.

A. Q.

A.

14. The evidence given to the Tribunal by both Mr. Brennan and Mr. Loughrey is unambiguous. For the Tribunal to make any finding on the GSM module that would implicate its Terms of Reference, not only would the Tribunal have to disregard their evidence, but in all reality, calling a spade a spade, both Mr. Loughrey and Mr. Brennan would have to be characterised as unreliable or dishonest witnesses. It is submitted that there is not a whit of evidence to support such a dramatic finding and the Tribunal has not, in the course of either’s evidence suggested anything as stark. It is submitted that it is accordingly not reasonably open to the Tribunal to make any adverse finding about the evidence of either Mr. Loughrey or Mr. Brennan. 15. Accordingly, it is submitted that in so far as the Tribunal is justifying the GSM module by reference to paragraph (g) of its Terms of Reference, “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)” then the evidence already heard by the Tribunal is of such a weight and consistency that it is unthinkable that the Tribunal could in fact reach a positive finding in terms of paragraph (g) of its Terms of Reference, which is the most obvious paragraph of the Terms of Reference implicated by the GSM module.

16. It is submitted that the Tribunal has an obligation to Mr. Lowry to conclude its investigation into the GSM process and to absolve him from any suspicion of wrongdoing as soon as it accepts that no finding can be reached by it that implicates the Terms of Reference. The Tribunal has no general entitlement to investigate the licence award per se. It can only do so, insofar as it pursuing a line of investigation that is relevant to its Terms of Reference. It is particularly important that a Tribunal does not delay in respect of the reputation of a current public representative who is anxiously awaiting an unambiguous statement from the Tribunal that he did not and could not have interfered with the result of the licence application process. It is submitted that this point has been reached some time ago and it is not understood why the Tribunal has not ceased its investigation into the GSM module prior to now. 17. To date, Mr. Lowry’s legal team, after 131 days of evidence on the GSM module, are unaware of what possible theory or factual basis the Tribunal or its Legal Team could have for sustaining the present hearings. There has been no statement at any stage of how Mr. Lowry is supposed to have interfered with the result of the Project Group’s deliberations. With respect, it is not sufficient for the Tribunal to rely on the tautology that it is conducting an open-ended inquiry and it will not reach any conclusions or findings until the totality of the evidence is heard. That formula is ultimately an empty one, as it provides no guidance on what witnesses are relevant in the first place. An investigation cannot easily be conducted without a hypothesis. Leaving aside the fact that Mr. Lowry’s In re Haughey rights would be gravely compromised if he were to be asked to give evidence without allegations against him being itemised and condensed which has not occurred to date, there is a grave concern on the part of his legal team that if the Tribunal has a theory that it is working on, it has not been adduced in evidence and thus has not to date been capable of being tested or rebutted. 18. Alternatively, the Tribunal may be leaning towards accepting that nothing has emerged in evidence to implicate an affirmative finding under its Terms of Reference. If that is so, then it is submitted that no more time, expense or effort should be expended on this module. This is so particularly having regard to the Terms of Reference which urge that “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 it.”

19. In short, either the Tribunal has no case against Mr. Lowry in respect of the GSM licence or it is contemplating “pulling a rabbit out of a hat” after 131 days of hearings. Neither possibility justifies the continuation of the module.

THE NON-AVAILABILITY OF MR. ANDERSEN

20. Turning now to the specific issue of the non-availability of Mr. Andersen, it should not be necessary in this submission to set out in any great detail the pivotal nature of Mr. Andersen’s role in the matters under investigation by the Tribunal in this module. He was the author and designer of the competition process. He was the consultant upon whom the Project Group relied on for guidance at all stages. He is the witness who would have an incomparable understanding of the process that led to the award of the licence to ESAT Digifone, because he was its architect. 21. Unsurprisingly, it seems that the Tribunal has itself recognised for quite some time that it may be unable to satisfactorily complete the GSM investigation in the absence of his evidence. In its letter of 14th January 2004 to Mr. Dermot McCarthy, Secretary General to Government, the Tribunal stated that the fact that Mr. Andersen “…played a very significant role in all aspects of the competition and especially the evaluation process is not in doubt.” The same letter went on to say that “[t]he Tribunal anticipates that Mr. Andersen will be able to be of considerable assistance should he give evidence.” 22. Even on this date, the Tribunal had surely taken on board the possibility of the GSM hearings remaining incomplete and not reported upon in the absence of Mr. Andersen’s evidence. The Tribunal was at pains to point out to the Government (through Secretary General McCarthy) the possible implications of Mr. Andersen’s non-attendance, stating “[a]t least one of the witnesses to the Tribunal, Mr. Denis O’Brien, through his counsel, has indicated that in the event that Mr. Andersen does not give evidence he may wish to make certain submissions concerning the capacity of the Tribunal to reach any conclusions in the absence of Mr. Andersen’s evidence.”

23. This letter, though of course diplomatically worded, in substance sought that the State provide the Indemnity sought by Mr. Andersen to facilitate his giving evidence in the jurisdiction. Following an exchange in relation to Danish legal advice as to whether the Tribunal could avail of a procedure for the taking of evidence on commission in Denmark (or an analogous procedure), Secretary General McCarthy replied to the Tribunal on 17th June 2004, indicating that the Government was minded to defer deciding upon Mr. Andersen’s claim for an Indemnity until all efforts to procure his evidence were exhausted. 24. Further investigation in relation to the likelihood of a successful application to the Danish courts eventually resulted in the Tribunal writing again to Secretary General McCarthy on 18th April 2005. This letter stated in no uncertain terms that the Tribunal had now formed the view that there was no realistic prospect of the Tribunal persuading Mr. Andersen to give evidence without the Indemnity sought and further, that there was no likelihood of success were an application to be made to the Danish Courts to have Mr. Andersen’s evidence taken in that jurisdiction. 25. By letter dated 4th May Secretary General McCarthy responded and conveyed the decision of the Government not to grant any Indemnity to Mr. Andersen. 26. On behalf of Mr. Lowry, the following is submitted: (a) The Tribunal has, using diplomatic language, pointed out to the Government in no uncertain terms the gravity of the consequences of Mr. Andersen’s nonattendance, seemingly in an effort to persuade the Government to accede to providing Mr. Andersen with the Indemnity sought. The request made of the Government by the Tribunal, if not unprecedented, was certainly extraordinary and unusual. The issue appears to have caused an 18-month hiatus in the GSM module hearings. Therefore, it is difficult to see how the Tribunal, having treated the matter so seriously and having sought an extraordinary concession from the Government, can take a view other than that the absence of Mr. Andersen fatally compromises the ability of the Tribunal to produce a meaningful report. It is not open to the Tribunal, having made such extraordinary efforts to procure the evidence of Mr. Andersen to make light of his absence;

(b) It is submitted on behalf of Mr. Lowry that the Tribunal must at this point recognise the limitations that are placed upon it by the absence of Mr. Andersen in terms of the findings of fact that could conceivably be reached. It is submitted that in his absence no finding could conceivably be reached that there was proven to be interference by the Minister with the work of the GSM Project Group that affected the outcome. This alone, it is submitted, deprives the Tribunal’s investigation of any continuing vitality or purpose, when measured by the yardstick of its own Terms of Reference. (c) Moreover, the absence of Mr. Andersen fatally contaminates the fairness of the procedures adopted by the Tribunal thus far (albeit unintentionally) as Mr. Andersen’s position and understanding of matters has been relied upon by the Tribunal throughout the GSM module and has informed the investigation of the Tribunal that have brought the hearings to the present stage. For instance, (i) Transcripts of Mr. Andersen’s comments at the presentations made by individual consortia have been opened, particularly those of the ESAT Digifone presentation. (Day 158, 5th December 2002). (ii) Minutes of numerous meetings of the GSM Project Group which record Mr. Andersen’s comments and views have been opened (throughout the GSM opening statement of Mr. Coughlan). (d) If Mr. Andersen’s evidence was purely formal and was agreed by all parties to the Tribunal to be uncontroversial, there might be some method by which the Tribunal would be capable of remedying his absence and completing its task regardless. But it is in fact apparent from the transcript of Mr. Coughlan’s opening of the present module that the Tribunal itself – never mind any of the other parties – does not accept certain aspects of Mr. Andersen’s version of events and sees matters differently from him on certain issues. For instance, in the course of his opening, on Tuesday, 10th December 2002, Day 160, Mr. Coughlan stated as follows:-

“The Tribunal has been informed by Mr. Michael Andersen that he viewed the form of the final report in which the financial risks were canvassed in this way as constituting a recommendation coupled with a marker which he envisaged being brought to the attention of the Minister. In other words, his impression was that it was for the Minister to accept or reject the recommendation and that in doing so, he believed that the marker concerning financial risks would have to be taken into account. He went so far as to inform the Tribunal that he anticipated that he himself would have been invited to meet the Minister to assist in the exploration of these issues concerning financial risks and the impact they might have on any final decision. As I have indicated, Mr. Andersen used the word "marker". The Tribunal suggested, in the course of a meeting with him, that the word "qualification" was a more appropriate term. But Mr. Andersen did not agree.”

(e) The Tribunal also disclosed in the course of Mr. Coughlan’s opening statement of the GSM module that the precise role played by AMI, the consultancy that Mr. Andersen headed, was not in fact understood by the Tribunal, and nor was the interaction between, on the one hand AMI and on the other hand, the members of the Project Group. These vital areas in respect of which the Tribunal confessed its confusion were candidly opened by Mr. Coughlan on Tuesday, 10th December 2004 (Day 160) in a passage that also disclosed that the Tribunal has in fact met Mr. Andersen on no less than four different occasions and has received from him at least four different explanatory memoranda.
“I now wish to turn to a question about Andersen Management International. Andersen Management International were the Danish consultants retained by the Department to provide expert assistance in the evaluation process. Andersen Management International were selected as consultants following an independent tendering and procurement process conducted by the Department. While a number of consultants attached to Andersen Management International provided expert services in their role in the process during the course of the evaluation, the primary point of contact between the Department and AMI was Mr. Michael Andersen, the then managing director of AMI. The precise role of AMI in the evaluation process is not entirely clear to the Tribunal. In a memorandum which AMI provided to the Tribunal, they described themselves as "Lead adviser in connection with the evaluation of the GSM II tender". They also informed the Tribunal in the same memorandum in connection with the issue of project organisation as follows: "The Department has overall responsibility for the conduct of the competition, but the ultimate responsibility was naturally with the Minister. A steering group or project team was established to conduct the tender process. The project team GSM comprised members of the then three telecommunications divisions of the Department and representatives of the Department of Finance. AMI consultants participated in some of the meetings from time to time, although AMI had no permanent members of this group. It is AMI's impression that written minutes of

meetings were taken for each project team GSM meeting by the Department, but AMI has only one of these. Besides the project team, specialised sub evaluation working groups were also established temporarily to carry out the evaluation of the applications. "The civil servants of the Department had control of the entire competition process including contact with the potential applicants and the Minister. AMI did not meet the Minister at any stage, before, during or after the process. "The Minister in his announcement of the appointment of AMI on the 11th April, 1995, stated "Andersens are particularly well suited to be his independent advisers." The Tribunal has difficulty in understanding the relative roles of individual members of the Project Group and AMI in the evaluation process, and in particular, in relation to certain significant decisions and steps taken in the course of the process, and including the decision made to abandon the initial evaluation methodology of a separate quantitative evaluation and qualitative evaluation, and to substitute this with what is described as a "holistic" approach. The decision to refrain from scoring other aspects, and in particular, the indicators of sensitivities and credibility which resulted in the perceived sensitivities associated with the financial frailty of Communicorp and of Sigma being unscored. The decision that instead of scoring other aspects, the perceived financial frailty of Communicorp and of Sigma would be described and addressed in the evaluation report. The final amendments which were made to page 44 of the evaluation report on the 25th October, 1995, on the proposal of certain members of the Project Group. The description by the Minister of AMI as his specialist consultants does not appear to be consistent with the information provided by AMI that they did not at any time meet with the Minister. Furthermore, Mr. Michael Andersen has independently informed the Tribunal that he was surprised that the Minister did not request a meeting with him to discuss the evaluation report and in particular, that portion of the report addressed to the financial frailty of members of the two top-ranked entrants. AMI has provided assistance to the Tribunal in the course of the investigative phase of its work. That assistance commenced in July 2001, when Mr. Michael Andersen attended a private meeting with members of the Tribunal legal team. Since then, Mr. Andersen attended further meetings on the 7th February, 2002, the 28th February, 2002, and the 30th April, 2002. On one of those occasions Mr. Andersen was also accompanied by a Mr. Michael Thrane, another AMI consultant. Mr. Andersen has also provided the Tribunal with a number of formal written narrative memoranda addressing various general and specific issues raised by the Tribunal. In all, the Tribunal has received four memoranda from Mr. Andersen, as follows:

1. A memorandum of January 2002 comprising a general overview of the involvement of Andersen Management International in the second GSM evaluation process in Ireland. 2. A memorandum relating to the transparency of the evaluation criteria fixed by the Department which was prepared on a comparative basis and which was furnished to the Tribunal on the 26th February, 2002. 3. A statement regarding the Minister's access to the evaluation methodology document and which was also furnished to the Tribunal on the 26th February, 2002. 4. A memorandum setting out Mr. Andersen's responses to a number of issues raised by the Tribunal and in particular relating to the quantitative evaluation, the withering away of the separate quantitative evaluation, amendments made to the final draft and the final version of the evaluation report and certain related issues which was furnished on the 20th June, 2002. The Tribunal understands that the principal narrative made available by Mr. Andersen in January of 2002 was delayed due to the issue of costs between Andersen Management International and the Department. The Tribunal understands that this issue was resolved by the agreement of the Department to discharge a fee of £20,000 to Andersen Management International for the preparation and provision of the memorandum. During the course of the four private meetings attended by Mr. Andersen, he also dealt with a number of queries raised by the Tribunal. On the 17th May, 2002, the Tribunal requested Mr. Andersen to provide a narrative account of his involvement and knowledge of the evaluation process and appended to its letter a schedule setting out 55 separate matters which the Tribunal wished Mr. Andersen to address. The Tribunal's purpose in seeking this narrative was to obtain much of the information already provided by Mr. Andersen, together with some additional information, in a structured format which would be appropriate to the giving of evidence if the Tribunal resolved that it should proceed to hear evidence at public sittings.”

(f)

Records of these four meetings and the four memoranda referred to by Mr. Coughlan have been in the possession of the Tribunal throughout the GSM module and have been relied upon at times in the hearings. For instance, the Tribunal relied upon the Memorandum furnished by Andersen International concerning the quantitative analysis (Day 159, 6th December 2002) that was referred to in Mr. Coughlan’s opening of the present module.

(g) What is important to note though is that the Tribunal, notwithstanding this significant level of interaction with Mr. Andersen, nonetheless regards his contribution as incomplete even leaving aside the question of his giving evidence. The Tribunal raised 55 separate matters with him under cover of a letter dated 17th

May 2002, which seemingly remains unanswered. Mr. Coughlan put the matter as follows on 10th December 2004 (Day 160):“During the course of the four private meetings attended by Mr. Andersen, he also
dealt with a number of queries raised by the Tribunal. On the 17th May, 2002, the Tribunal requested Mr. Andersen to provide a narrative account of his involvement and knowledge of the evaluation process and appended to its letter a schedule setting out 55 separate matters which the Tribunal wished Mr. Andersen to address. The Tribunal's purpose in seeking this narrative was to obtain much of the information already provided by Mr. Andersen, together with some additional information, in a structured format which would be appropriate to the giving of evidence if the Tribunal resolved that it should proceed to hear evidence at public sittings.”

(h) Accordingly, the Tribunal has reached a point where its investigations and work to date on the GSM module are heavily reliant on Mr. Andersen’s contribution and assistance, yet that assistance is incomplete, and further, Mr. Andersen will not now come to give evidence. His shadow is everywhere, yet his evidence cannot be obtained, much less scrutinised and tested. It is submitted on behalf of Mr. Lowry that the Tribunal has no option at this point other than to accept that its Inquiry, insofar as the Terms of Reference of the Tribunal can plausibly be concerned, has reached a dead end and must conclude forthwith.

THE ATTITUDE OF THE GOVERNMENT AND OIREACHTAS TO THE TRIBUNAL

27. The inescapable conclusion to be drawn from the correspondence of Secretary General McCarthy is that the Government is less perturbed by the making of a decision that may compromise the ability of the Tribunal to complete its investigation, than it is by the other considerations referred to in the Secretary General’s letter of 4 th May 2005 that explains the Government’s reasons for not granting Mr. Andersen the Indemnity sought. In short, it is submitted on behalf of Mr. Lowry that what comes across from the Government’s correspondence is that the Tribunal should either go to Denmark to pursue Mr. Andersen, fruitless and all as that task may be, or in the alternative if Mr. Andersen’s absence compromises the Tribunal’s ability to report, so be it.

28. The Tribunal has made a request of the Government that established it and the Government has refused that request. This, it is submitted on behalf of Mr. Lowry, raises some rather searching questions about the continuing mandate of the Tribunal. 29. The Government established the Tribunal in September 1997. Included in its Terms of Reference was the request that it report to the Clerk of the Dáil on an interim basis, not later than three months after its establishment or the tenth day of oral hearings, whichever should occur first. It should be noted that it was considered by the drafters of the Terms of Reference to be a matter of some doubt whether three months in time or 10 days of oral hearings would be sooner. In fact, Day 10 of Oral Hearings took place on 5th February 1999, almost eighteen months after the establishment of the Tribunal. It is accordingly clear that the Tribunal has at all stages taken a much longer period of time to carry out its functions than the Government or Oireachtas intended. 30. It was presumably not in the contemplation of the Oireachtas that when the Tribunal was established in September 1997 and asked to report on an interim basis either within three months or after the first 10 days of oral hearings that no report, interim or otherwise would have been produced by September 2005. 31. The Terms of Reference, when read as a whole, make it abundantly clear that the mandate of the Tribunal was to conduct a short and focused inquiry dealing with the net question of whether any Government decisions made by Mr. Haughey or Mr. Lowry were tainted by financial links with the beneficiaries of those decisions. It is instructive to recall that the Tribunal was asked in the Terms of Reference, as well as making its primary findings of fact, to make broad recommendations on six different areas, referred to at paragraphs (k)-(p) of the Terms of Reference. With the utmost respect, it is clear that in 2005, the Tribunal is absolutely redundant in this task, as in each of the six areas that the Tribunal was asked to make recommendations upon, the Oireachtas have gone ahead and introduced new legislation of their own initiative since 1997. The six different areas were as follows:-

k.

relating to the funding of political parties. The Oireachtas have gone ahead and legislated on this anyway. Standards in Public Office Act, 2001 and the Electoral (Amendment) Act, 2001.

l.

relating to the enforcement provisions of Company Law. This has all been legislated for in the Company Law (Enforcement) Act, 2001;

m.

relating to the independence of the Revenue Commissioners; The Revenue’s powers have changed on a number of occasions since 1997. They were, for instance, greatly increased by Section 207 of the Finance Act, 1999.

n.

relating to the enhancing the role and performance of the Central Bank. The Central Bank was re-structured and re-named as the Central Bank and Financial Services Authority of Ireland (CBFSAI) on 1 May 2003 pursuant to the Central Bank and Financial Services Authority of Ireland Act of that year.

o.

relating to the effective regulation of professional accountancy bodies. This has been legislated for by the Company Law (Auditing and Accounting) Act, 2003, together with the Company Law (Enforcement) Act, 2001

32. In Dáil Éireann on the 11th day of September, 1997, the Tánaiste, Ms. Mary Harney T.D. said on the debate to establish the Tribunal, in commending the proposed terms of reference to the House: “The terms of reference drawn up for the new tribunal strike the right balance. On the one hand, we cannot have an inquiry which is openended. We cannot engage in a broadly based fishing expedition, hoping that we will find Pandora’s box. On the other hand a tribunal which has a narrow focus on a few specific areas runs the risk of requiring us to come back in a few months’ time to establish a third inquiry…..If this second tribunal does its work with the efficiency and clarity of McCracken, the body politic and the people it serves will be rendered a great service.” It is submitted on behalf of Mr. Lowry that any plain reading of the

contemporaneous language of the Tánaiste on the day that Dáil Éireann approved the establishment of the Tribunal demonstrates that this Inquiry was not intended to endure for the period of time that it has. 33. Recent debates of Dáil Éireann confirm this impression. Mr. Lowry seeks to rely on a lengthy passage from Taoiseach’s Question Time on 18th May 2005 which is set out in full below as follows:“Tribunals of Inquiry.
1. Mr. Kenny asked the Taoiseach the costs which have accrued to his Department in respect of the Moriarty tribunal during the first quarter of 2005; and if he will make a statement on the matter. [12844/05] 2. Mr. Rabbitte asked the Taoiseach the total costs of the Moriarty tribunal in respect of the first quarter of 2005 for which his Department has responsibility; and if he will make a statement on the matter. [14216/05] 3. Caoimhghín Ó Caoláin asked the Taoiseach the costs to his Department of the Moriarty tribunal in the first quarter of 2005; and if he will make a statement on the matter. [15070/05] 4. Mr. J. Higgins asked the Taoiseach the costs which have accrued to his Department with regard to the Moriarty tribunal in 2005 to date; and if he will make a statement on the matter. [15222/05] 5. Mr. Sargent asked the Taoiseach the costs to date to his Department of the Moriarty tribunal in 2005; and if he will make a statement on the matter. [16062/05] The Taoiseach: I propose to take Questions Nos. 1 to 5, inclusive, together.

The costs incurred by my Department during the first quarter of 2005 in respect of the Moriarty tribunal amounted to €670,094 and the costs to 30 April 2005 amounted to €976,139. The estimated costs for the tribunal for 2005 amount to €4 million. However, provision for an additional €6.5 million has been made to cover costs, such as report publication and some element of award of legal costs in the event that the tribunal completes its work in 2005. The overall estimate for 2005, therefore, is €10.583 million. The total cost incurred by my Department since 1997 to 30 April 2005, is €19,619,388. This includes fees paid to counsel for the tribunal and administration costs incurred to date since its establishment. The total payment made to the legal team up to 30 April 2005 was €14,660,792. Mr. Kenny: These are truly extraordinary figures that the Taoiseach has provided — €14 million in legal fees and costs of €20 million to date. The Moriarty tribunal was established in 1997 by this House with a remit to determine particular facts. It is now in its ninth year but has not produced a report of any kind, including an interim report. The Flood tribunal, now known as the Mahon tribunal, has produced four interim reports, the most recent of which gave an indication of the current state of the tribunal’s work-load and projected timescale.

The Moriarty tribunal’s terms of reference include the fact that it can make an interim report. It last sat on 15 September 2004. An Ceann Comhairle: A question please.

Mr. Kenny: When does the Taoiseach expect the Moriarty tribunal to conclude? Will the Taoiseach comment on the interlocutory injunction secured by Mr. Denis O’Brien in the Supreme Court last week? An Ceann Comhairle: Mr. Kenny: Deputy, that matter is not appropriate for Question Time.

It is appropriate. It does not arise from these questions, which deal exclusively

An Ceann Comhairle: with costs. Mr. Kenny:

It does arise with regard to costs. It does not arise from these questions.

An Ceann Comhairle: Mr. Kenny:

The Moriarty tribunal now wants to investigate—— We cannot discuss the workings of the tribunal at Question

An Ceann Comhairle: Time.

Mr. Kenny: The cost to the taxpayer of the Moriarty tribunal investigating the sale, purchase or otherwise by Mr. Denis O’Brien of Doncaster Rovers is the subject of an interlocutory injunction, which Mr. O’Brien obtained in the Supreme Court. An Ceann Comhairle: House. Mr. Kenny: Deputy, we cannot discuss those matters on the floor of the

I am not going to discuss them. The Chair has ruled on that many times.

An Ceann Comhairle:

Mr. Kenny: This is about costs. We may well have to wait until the interlocutory injunction in that case is heard before the Moriarty tribunal will be able to continue its work in respect of that element of its remit — if that is deemed to be legal. My question relates to costs. Supposing that case takes 12 months, will lawyers at the Moriarty tribunal be paid exorbitant wages every day for doing nothing while it is being pursued? It is not for me to decide whether the Moriarty tribunal is acting within its terms of reference. That is a matter for the Supreme Court. However, lawyers at the Moriarty tribunal will continue to be paid, at a cost to the taxpayer, for doing absolutely nothing. An Ceann Comhairle: his point. We cannot decide these questions here. The Deputy has made

Mr. Kenny: We need a conclusion to this tribunal. Does the Taoiseach have any idea as to when it might actually conclude? The Taoiseach: As regards the Deputy’s first question, I cannot be certain and I cannot control it totally. However, in the negotiations that were instigated by the previous Minister for Finance on all the tribunals, he set down a new schedule of fees that would take effect subject to negotiations that the Office of the Attorney General would have with the

various chairpersons of all the tribunals. In the discussions with the Moriarty tribunal, the date that was agreed before the new arrangements would come into place was 11 January 2006. I accept what the Deputy said about issues that could perhaps delay or extend this date, but my clear understanding is that, one way or another, the new schedule of fees will come into place on 11 January 2006. I assume that chairmen of tribunals can seek extensions, but the previous Minister for Finance was clear that these dates were negotiated and in his view they were final. That should be the arrangement. Under the new fees arrangement negotiated by the previous Minister, which would come into effect at that stage, the set fee to be paid to a senior counsel will be based on the current annual salary of a High Court counsel, plus 15% in respect of pension contributions. Related payments will be made to other legal staff, including barristers and solicitors. On this basis, the specific annual remuneration packages will be on a senior counsel’s rate, a junior counsel’s rate and a solicitor’s rate, which the previous Minister set out. I hope the tribunal can complete its work and report by then. If it does not, however, my understanding is that the new rates will apply from 11 January 2006. Mr. Rabbitte: I did not catch all of the Taoiseach’s reply. Is he saying that this diminution of cost will commence from a particular date, irrespective of where we are by that date? It seems unlikely that between now and 11 January 2006, the date when the reduction in fees comes into effect, a great deal more progress will be made. Is it not possible for this House to give a direction to the Moriarty tribunal and others to cause them to focus on the core business? On the face of it, it is extraordinary that one could read in the newspapers last week about a matter being decided by the Supreme Court whereby, apparently, it was proposed to inquire into the purchase of a football club, which was not even anticipated at the time the tribunal was established. Am I losing the plot here? This House established the tribunal to examine certain matters of public interest, but it is difficult to understand how a decision that was not even contemplated at the time, but which presumably was made subsequently, based on normal commercial criteria, now ends up being inquired into by that tribunal. Many taxpayers who are paying for this tribunal would have some difficulty with that conclusion. Does the Taoiseach agree that when history is written and his many fine qualities are set out it is likely that historians will conclude that the setting up of the tribunals was his best political stroke ever and the best judged and most brilliant political kick to touch in the history of politics—— An Ceann Comhairle: The matter does not arise from Questions Nos. 1 to 5.

Mr. Rabbitte: ——because it means the matters into which the six or seven tribunals are inquiring cannot be discussed or debated in the House without, at any rate, doing great damage to the Ceann Comhairle as he would get very upset policing the rules of the House? An Ceann Comhairle: For the benefit of the Deputy, the Chair has ruled on a number of occasions that issues currently before a tribunal are not a matter for the Dáil, which may not run a parallel tribunal. Mr. Rabbitte: That is precisely my point.

An Ceann Comhairle: The fact that the House decided by resolution to establish the Moriarty tribunal does not give it the right to attempt to interfere in any way with its proceedings. The resolution of this House establishing the tribunal was pursuant to the

statute, the Tribunals of Inquiry Acts, whereby the judicial proceedings and the conduct of the hearings held thereunder are clearly the sole responsibility of its judicial chairman. Mr. Rabbitte: I am upset that even when I rise to support the Ceann Comhairle, he seems to expect that I am in contention with him. I support him entirely. An Ceann Comhairle: The Deputy is not in contention with the Chair. I am merely refreshing his mind on the decision the House made. Mr. Rabbitte: I accept the House cannot discuss issues which are before the tribunal. It was in respect of that precise matter that I complimented the Taoiseach on his foresight because if Deputies had been able to discuss the issues before the tribunals, it might have been a different story. An Ceann Comhairle: All Members, including the Chair, are bound by the legislation passed by the House, namely, the Tribunals of Inquiry Acts. Mr. Rabbitte: I accept that. If a cut-off date is applied, should the tribunals not restrict themselves to their core business? The Taoiseach expressed his hope that this particular tribunal would conclude its business. How can one reasonably expect it to do so? I do not envisage that senior counsel and other lawyers will continue to work for the tribunals when the cut in pay takes effect. Does the Taoiseach believe they will do so? The Taoiseach: Deputy Rabbitte makes a valid point about the tribunals. I assure him this was not my intention — as anybody who looked at the record would also conclude — when I participated with others in setting them up, although obviously I had responsibility as Taoiseach. As some of my staff have shown me a number of times, at that stage all of us indicated that two years seemed to be an awful long time for a tribunal to come to a conclusion. On one occasion in 1999 Deputies agreed that if the tribunal went to the summer of 2000, we could live with that. We are in the summer of 2005 and the total cost of the tribunals is, I believe, more than €200 million based on the figure of €197 million I saw some months ago. This was not my intention. While I do not wish to be contentious, when one looks back at the costs for different years and compares the rates paid currently to the new rates negotiated by the Minister, the enormous difference in the figures will certainly create many difficulties for the individuals concerned. The new rate will be €213,000 as against the current rate, a multiple of that figure, negotiated for all the tribunals. The previous Minister for Finance was tough in that respect. He reached a position on the Ferns and Neary inquiries and the Barr, Moriarty, Morris and Mahon tribunals and arrived at dates for each, most of which are this year, with some early next year. The exceptions are the Morris tribunal which has a date of September 2006 and the Mahon tribunal which has a date of March 2007. I understand that under the agreement the new rates will apply from the specified dates. If the tribunals make a case that this should be otherwise, the matter will have to be brought to the House. On the terms of reference, Deputies Rabbitte, Kenny and other party leaders, including Deputy Sargent, and I endeavoured in the legislation passed last year to keep to the issues because the question which would otherwise arise would not be whether the tribunals would conclude during my time as Taoiseach but whether they would do so during my lifetime. I hope to be alive for another few years but the difficulty is that if we do not keep to the issues, the tribunals will go on forever. A further difficulty is the relevance of issues dating back to 1997. They are important but if one does not bring them to a conclusion, they will go on and on. I cannot honestly tell Deputy Rabbitte what will happen when the position changes.

Mr. Kenny:

Doncaster Rovers may have overtaken Manchester United at that stage.

The Taoiseach: That is very likely given the way things are going. I can only give the Deputy an answer based on the current position. As I stated in my reply, I have optimistically provided €6.5 million this year to cover the costs of publication and the award of legal fees on the basis that we will get to the new position. Obviously, however, I cannot promise Deputies that we will do so. Caoimhghín Ó Caoláin: The Taoiseach stated in February that the expected completion date for the Moriarty tribunal was January 2006. Is that still his expectation? Will he clarify the position which would apply if the tribunal were to continue beyond January 2006? Would the new fees payable to the legal profession come into effect as of that month or would the current exorbitant rates the legal profession is currently drawing down continue to be paid? I have checked the responses given by the Taoiseach in February when he stated the cost to the Exchequer of legal fees for all sitting and completed tribunals at that date was €138.92 million. I note he cited a higher figure in his response to Deputy Rabbitte. The Taoiseach: The figure refers to total costs; legal fees are not the only costs.

Caoimhghín Ó Caoláin: Will the Taoiseach clarify whether the figure he cited of in excess of €200 million referred not only to legal fees but also to other costs involved because it runs contrary to the information he gave in February? Does he appreciate that almost every citizen views the fees paid to the legal profession as a massive rip-off? Will he clarify when, if ever, the new fee regime will kick in for the Moriarty tribunal and all other sitting tribunals? The Taoiseach: On the previous occasion that I answered questions on this issue I had not asked my Department to update the costs. The figure of €142.38 million I cited in February was in respect of legal costs. A further €54.48 million related to other costs, giving a total cost of €196.86 million. The figure for legal costs includes some €60.7 million in respect of third party legal costs awarded to date. As regards tribunals of inquiry and public inquiries which are sitting at present, the total cost to the end of February was €159.22 million, of which €110.66 million is in respect of legal costs and €35.18 million relates to third party legal costs. To clarify what I said to Deputy Rabbitte, as the figure is now three months old, it is safe to say it will have increased to well over €200 million. The dates agreed by Government on which the new schedule of fees would be applied to most of the tribunals are: for the Ferns tribunal on child abuse, March 2005; for the Neary inquiry into events at Our Lady of Lourdes Hospital, March 2005; for the Barr tribunal into events at Abbeylara, June 2005; for the Moriarty tribunal, 11 January 2006; for the Morris tribunal into complaints about Donegal gardaí, 30 September 2006; and for the Mahon tribunal March 2007. The completion date for that was further away but when we brought in the legislation, it brought it back from 2012. The Government set different dates for different tribunals of inquiry having regard to the individual circumstances of each of the tribunals of inquiry and after communication with each of the chairpersons. We determined not to set dates that were unrealistically early and that would involve extensive disruption of the tribunals and inquiries by reason of changes in the legal personnel involved. The delays and costs that such changes would have entailed could have added to rather than reduced the costs of tribunals of inquiry. Deputy Rabbitte asked what happens when we come to these dates. The figures for senior counsel will be €213,000, for junior counsel €142,000 and for solicitors €176,000 but that is small compared to what they are currently getting.

Mr. Rabbitte:

It is like a community employment scheme. They would probably qualify for family income supplement.

Caoimhghín Ó Caoláin: The Taoiseach: reached.

That issue arises but I can just give the House the agreement that was

Mr. Sargent: I am not sure I heard the Taoiseach give a definitive answer regarding whether he feels the 11 January 2006 completion date will be the end of that tribunal. With 2005 in mind, the Taoiseach mentioned €10,583,000 on the assumption that there would be a report. Is he confident we will get a report before long, given there has not been an interim report to date? On the basis of the escalating costs, would he care to include the Moriarty tribunal and other tribunals in the category of overruns earmarked for other projects the Government is bankrolling? Does the Taoiseach have figures for the staff numbers working on the Moriarty tribunal? In November 2004, the Taoiseach said there would be no new staff. What did he mean when he said in February that new staff had been appointed presumably to some tribunal? Can the Taoiseach clarify if that was the Moriarty tribunal and outline the current position? I thank the Ceann Comhairle for allowing these questions because it is difficult to keep within the bounds of the House given that we are not supposed to discuss tribunals here. The Taoiseach: Mr. Sargent: The only date that I have for the Moriarty tribunal is 11 January 2006.

Is the Taoiseach confident about that date? I have literally no control over it, I have no idea.

The Taoiseach:

I do not know if clerical staff are involved but the only record I have for the Moriarty tribunal states that it has two senior counsel, one junior counsel, four research counsel and a solicitor. Those are the up-to-date figures, including additional staff, agreed when the Attorney General and Minister for Finance were dealing with this issue and working towards those dates to assist the tribunals to bring their work to completion.”

34. The nature of these recent exchanges in Dáil Éireann, it is submitted, speak for themselves. The Taoiseach has told the Dáil that it was not it his intention in establishing this Tribunal that it should endure for the length of time that it has. The two leaders of the principal Opposition parties have expressed outrage about the cost and duration of this Tribunal. 35. It is submitted on behalf of Mr. Lowry that however uncomfortable reading the transcripts of the Dáil Debates make for the Tribunal, there is a strong suggestion that this Inquiry is losing the support of Dáil Éireann for its endeavours. Jokes are made on the floor of the House that Doncaster Rovers will have surpassed Manchester United on the football pitch by the time the Tribunal has completed its task, and that

the new financial arrangements for its counsel are a sort of Community Employment Scheme. 36. When one adds the very public criticism that this Tribunal has received in the Oireachtas to the lack of support for its request of Government for an Indemnity for Mr. Andersen to facilitate the present Inquiry, it is difficult to resist the conclusion that, whilst remaining strictly independent in the exercise of its functions, this Tribunal has in fact forfeited the support of both the Government and the Oireachtas. 37. This is a pressing consideration that argues in favour of the submission here made: that the appropriate course for the Tribunal is now to wind up its Inquiry into the GSM licence. In the alternative, if the Tribunal is confident that this submission is unfounded, it is urged that the Tribunal ought now to seek a renewed mandate from the Oireachtas, including the power for itself to grant an Indemnity to Mr. Andersen of its own motion. That would seemingly resolve of the problem as the Oireachtas would presumably, whether by way of resolution or legislation have the power to grant such an Indemnity. If the Tribunal is unwilling to make this request of the Oireachtas, it is surely reasonable for a party such as Mr. Lowry to take it as conceding that it would not expect to receive support for such a request. 38. None of this is intended to in any way question the integrity, commitment or bona fides of either the Sole Member or the Tribunal’s Legal Team. But a party appearing before the Tribunal like Mr. Lowry is entitled to advert to the real context in which the Tribunal seemingly proposes to continue its hearings, before the Tribunal reaches any determination as to whether or not it is appropriate for it to do so when a fork in the road presents itself as the absence of Mr. Andersen has done.

ROSSA FANNING BL

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