Events this week raise the question whether the Moriarty tribunal into payments to politicians has been an impediment to the political career of Michael Lowry and, more generally, whether such tribunals are worthwhile.
Fianna Fáil and Fine Gael this week agreed to form a new government in partnership with the Regional Independents Group, of which Lowry (70) is the de facto leader. The deal comes against the backdrop of a Garda file being sent recently to the office of the Director of Public Prosecutions (DPP) arising from the Moriarty tribunal’s hugely serious findings against Lowry almost 14 years ago. The DPP must now decide whether charges should be brought against anyone.
Lowry has said he is fully confident there is no basis for a case against him.
In the wake of the tribunal’s 2011 report, the Oireachtas passed a motion calling on Lowry to resign, saying his conduct, as outlined in the report, was “completely unacceptable”. The vote came a month after a general election in which Lowry topped the poll in North Tipperary, a performance he has repeated many times since, most recently last year.
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The report on Lowry was the tribunal’s second and final one. An earlier volume, on the former taoiseach Charles Haughey was published in 2006. The 1990s and 2000s witnessed an outbreak of tribunals, commissions of investigation, Oireachtas committees and company law inquiries, but the Moriarty tribunal was always the big beast. Haughey and Lowry were given money by the wealthiest individuals in the State. When the tribunal sat, serious power sat under scrutiny.
The Moriarty tribunal (1997-2011) held its hearings in the same hall in Dublin Castle as the earlier McCracken (Dunnes Payments) Tribunal (1997). Elsewhere in the castle, the Planning Tribunal (1997-2012) investigated corruption in the planning process. What was happening in the castle was part of a wider wave of inquiry driven by a change in the Irish attitudes towards transparency and authority. Politicians with dodgy personal finances, businessmen who gave money to politicians hoping for something in return, the banks, the Revenue Commissioners, the Catholic Church, ordinary taxpayers with questionable Deposit Interest Retention Tax accounts, and wealthy people with money stashed in the offshore Ansbacher deposits, were among those buffeted by the wind of change.
The genesis of McCracken lay in media disclosures that Haughey and Lowry got money from the late Ben Dunne, the head of Dunnes Stores. McCracken said the politicians had done nothing in return for the money, but Moriarty decided otherwise. It found that Haughey, who received approximately IR£2 million (€2.54 million) from Dunne, interfered with the Revenue so that it offered to settle a £38.8 million tax bill the Dunne family trust was facing, for £16 million. The offer was not taken up, but the tribunal decided it constituted a tangible benefit for Dunne.
It also found that Lowry tried unsuccessfully to influence a rent review on an office building owned by Dunne and rented by State-owned Telecom Éireann. Moriarty said the effort, which would have netted Dunne millions at the public’s expense, was “profoundly corrupt to a degree that was nothing short of breathtaking”.
When it discovered payments to Lowry by the businessman Denis O’Brien, it investigated Lowry’s actions as Fine Gael minister for communications and decided he secured the granting of the State’s first private sector mobile phone licence to a consortium (Esat Digifone) established by O’Brien. That happened in 1995/1996. (Later in 1996, Lowry resigned as minister in disgrace following the revelations about the Dunne payments.) Lowry and O’Brien disputed the tribunal’s findings, but they still stand.
Tribunals often spark frustration when shocking findings do not lead to criminal prosecutions, but there are serious reasons that can, at least in part, explain this. The law that provides for tribunals seeks to balance their purpose – fact-finding and reporting on matters of legitimate and substantial public concern – with the right of a person, corporation or other entity, to be left alone. Tribunals of inquiry can compel the production of documents and the giving of evidence relevant to their terms of reference. To compensate for the huge interference this entails, the evidence collected by tribunals cannot be used in the criminal courts. If the discoveries of tribunals lead to criminal investigations, gardaí must collect their own evidence for potential production in court. A tribunal can express an opinion on the evidence it collects, whereas a criminal conviction requires that a charge be proved beyond reasonable doubt. The hurdle is higher for criminal investigations than it is for a tribunal.
There are other factors that can complicate criminal trials arising from tribunal disclosures. One is prejudicial publicity affecting the person’s right to a fair trial; tribunals tend to be high-profile events. Another is the passage of time between a matter, usually historical, being discovered by a tribunal, and a charge coming before the courts. It is not clear why it took the Garda 14 years to complete its file arising from the 2011 Moriarty report, but the passage of time raises the question of the fairness of now bringing charges against anyone.
The paucity of downstream convictions arising from tribunals does not mean that those who were their focus have not suffered. The media coverage of, and the public interest in, what was happening in Dublin Castle was often intense. People suffered public abuse, ridicule and hatred. Many deserved to lose their good name, but that does not mean it was not a traumatic, enduring event.
The castle tribunals all heard evidence about political donations from businessmen and businesses who expected favours in return. The disclosures were the backdrop to a new law restricting the ability of politicians and parties to fundraise from private donors and the introduction of State funding for incumbent politicians and established political parties. The law on political fundraising in this jurisdiction is completely different now from that in the UK (including Northern Ireland) and the US (where the world’s richest man, Elon Musk, supported Donald Trump’s presidential campaign to the tune of a quarter of a billion dollars).
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The tribunals cost hundreds of millions in legal bills but brought in substantial amounts in unpaid taxes (including from Lowry and Haughey). The tribunal era probably paid for itself. The wider financial and ethical benefits to society are more difficult to measure but are without doubt substantial. Ireland was transformed for the better. That someone like Lowry was excluded from serious political power was one of the benefits of what happened in Dublin Castle in the 1990s and 2000s. Or at least that was the case until this week.
Colm Keena, a staff journalist, covered the Moriarty Tribunal for The Irish Times
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