Moriarty Tribunal Report

Speech by Mr. Alan Shatter T.D., Minister for Justice, Equality and Defence in Dail Eireann on Wednesday 30 March 2011

Referral of Report to the DPP

Within 24 hours of its publication the Moriarty Report was referred to the Director of Public Prosecutions and the Gardaí who are the bodies responsible for the investigation and prosecution of criminal offences and the report is presently being studied by the Gardai. It has also been referred to the Revenue Commissioners. This clearly illustrates that the Government regards the contents of the Report as extremely serious.

As Minister for Justice, Equality and Defence, I am particularly conscious of the responsibility that rests on all of us not to do or say anything that might undermine or interfere with the role of the Gardai or the DPP and prejudice possible future criminal proceedings. I would remind the House that in the past, a statement made by a Minister of Government did in fact have such effect.

My priority as Minister is to ensure that the criminal law is such that successful prosecutions are possible when criminal offences have been committed. It is not appropriate that the Minister for Justice in any way prejudge such matters and in the circumstances I do not intend to make any comment on the findings contained in the Moriarty Report with regard to the conduct of Deputy Lowry or any other person connected with the license granted to East Digifone or with regard to the dealings detailed in which it is stated by the Report individuals were engaged. These matters are under consideration by An Garda Siochana and the Director of Public Prosecutions will decide on an independent basis whether any criminal charges should be brought.

The Taoiseach in his speech has already made reference to the recommendations contained in Moriarty for substantial reform as also has the Minister for Communication, Energy and Natural Resources. Many of the reforms recommended already form part of the Programme for Government and a commitment has been given to implement badly needed reforms in respect of areas addressed by Moriarty.

The recommendations of the Moriarty Tribunal did not of course specifically address broader issues concerning the investigation and prosecution of white collar crime. This is however a subject firmly in the Programme for Government. The Programme contains a commitment that rogue bankers and all those that misappropriate or embezzle funds or who are engaged in any form of white collar crime will be properly pursued for their crimes and that the full rigours of the law will apply to them.
Tribunals of Inquiry

In his Report, Mr Justice Moriarty made a number of recommendations concerning the future operation of tribunals of inquiry. These recommendations broadly refer to matters concerning the duties and responsibilities of persons appearing before the tribunal as witnesses, or requested by it to provide certain documentation. The Programme for Government contains a commitment to reform and update legislation with regard to Tribunals of Inquiry. In this context, it is noteworthy that a previous Fianna Fail led government published the Tribunals of Inquiry Bill 2005 but for over 6 years it was left languishing on the Dail Order Paper and never completed its passage through the House. I have arranged for its restoration to the Dail Order Paper and the Bill will be dealt with as a Report Stage Bill.

I am glad to say that many of the provisions in the Bill as it stands would appear to address concerns expressed by Mr. Justice Moriarty and the recommendations suggested by him. In the context of Micheal Martin TD, the Leader of Fianna Fail in this House, pirouetting on the morality soapbox in response to Moriarty he might explain to the House why the Government of which he was a senior Member failed to enact this important legislation.

Insofar as any additional legislative changes are necessary to address the Moriarty recommendations, I can say that my Department, being the Department with responsibility for the Tribunals of Inquiry Acts, will examine the recommendations in consultation with relevant Departments and the Attorney General with a view to their implementation as appropriate.

A good deal of our current tribunal legislation dates from 1921. The public interest would indeed be served by ensuring that the law under which tribunals of inquiry operate is as modern, cost effective and efficient as possible. The Tribunals of Inquiry Bill 2005 provides a modern statutory framework governing all aspects of the operation of a tribunal, from the time of its establishment to the publication of its final report.

It is worth recalling that the main features of the Bill are as follows:

the process for establishment, terms of reference and amendment of those terms, procedures of operation and reporting, suspension and dissolution of a tribunal is clearly set out – a resolution of both Houses of the Oireachtas on the draft Order proposed by Government is required in each instance;

the position with regard to the granting of legal representation to persons concerned and the nature and extent of that representation, before a tribunal is clarified;

the ultimate award of legal costs by a tribunal is clarified – cooperation with the tribunal remains the key determinant for an award of costs;

the powers of the tribunal in regard to compelling witnesses to attend and the production of documents are clearly set out. There is a duty to cooperate fully. It should be noted that the tribunal may apply to the High Court to enforce its orders in those regards;

persons giving evidence to a tribunal have the same immunities and privileges as a witness in proceedings in the High Court;

the powers of the tribunal relating to receipt of evidence and submissions are set out;

the issues of liability and non-admissibility in criminal proceedings of evidence given to a tribunal are also set out.

I should point out that I do intend to bring forward amendments to the Bill at Report Stage to ensure the Bill is as comprehensive as necessary.

I now want to, in the brief time available to me, address two matters of importance connected with the Moriarty Tribunal, the response to it given by some of those involved in the Tribunals hearings and also the response of Fianna Fail.
The Role of the Judiciary

Members of the judiciary are precluded by their independence and constitutional status from entering into controversy or responding to attacks made on them. However, such was the unprecedented and virulent nature of the attacks made last week on the Tribunal Chairman, who is a respected senior member of the judiciary, and on the judiciary as a whole, that I felt it was necessary for me, as Minister for Justice, to condemn the entirely unacceptable statements made.

In the normal course of the administration of justice, an unsuccessful party may often express disagreement with the decisions of a court. Individuals may also disagree with the conclusions of a tribunal whether a party to a matter under inquiry by a tribunal or simply someone commenting on its conclusions. In expressing views individuals are entitled to be critical and complain about the outcome. This is human nature and is perfectly reasonable and proper. What occurred last week went substantially beyond any critique that is acceptable and was intended to bring the judiciary into disrepute and to undermine public confidence in the administration of justice. The personalised nature of the assault on the integrity of Mr Justice Michael Moriarty by Deputy Lowry in this House last night is also entirely unacceptable. Insofar as the Deputy or any other person alleges that the Tribunal expressed opinions or reached conclusions for which there was no basis in evidence a mechanism is available by way of judicial review to the High Court to have such matters addressed. I am sure those who have made intemperate comment on the Tribunal’s Report are fully aware of this and it is for them to decide whether they wish to take any such action.

An independent judiciary is something we very much take for granted since the earliest days of this State. I think it appropriate, given recent events, to remind Deputies just what that stock phrase means.

An independent judiciary ensures that judges’ decisions are taken solely on the basis of law, independent of any fear, favour or influence, whether personal, political or media driven. The power of judges to uphold the Constitution and strike down aspects of our law is a fundamental bulwark against the risk of tyranny and oppression. Guaranteed this independence, the judicial system in a democracy serves as a safeguard of the rights and freedoms of all the people. We have been well served by our independent judiciary and to imply otherwise, indeed to accuse judges of conspiracy and bias, is entirely unacceptable and wrong. I will not be found wanting in protecting and ensuring their independence is strengthened and secured.

Fianna Fail’s response to Moriarty

Deputy Micheal Martin on the 9th March 2011 on the nomination of the Taoiseach reflecting on the outcome of the General Election stated that “one of the clearest messages from the people is that they want us to reform the way we do our business in this House”. He continued “far too often, contributions here are about seeking attention rather than dealing with the serious issues at hand. The difference between permanent campaigning and daily business is sometimes difficult to discern.” He promised that Fianna Fails approach in the Dail “will be to provide constructive opposition.” His initial contribution in the Dail last week on Moriarty as repeated both in his speech yesterday and on the Order of Business this morning starkly illustrates his incapacity to keep such promise or to change the traditional dishonest obfuscation beloved by Fianna Fail. On the one hand, Micheal Martin says that he accepts in full the Moriarty Report and the recommendations contained in it and on the other hand, he has consistently and persistently misrepresented and selectively quoted from the Report. He has engaged in what can at best be charitably be described as nauseating hypocrisy, selective recall and moral ambivalence. He seems oblivious to the political credibility gap of enormous dimension which contaminates much of what he has so far said. He is presenting as someone who has emerged after 20 years lost in a political twilight zone suffering from amnesia and oblivious to events in which he has personally participated. He seems even incapable of remembering the recent secret deal concluded by Fianna Fail with Deputy Michael Lowry subsequent to publication of both the McCracken Report and Part 1 of Moriarty designed to preserve and maintain Deputy Martin’s Ministerial status in Government until February of this year.

In his obsessive wish to inflict political damage on the Government and in particular the Fine Gael Party, Micheal Martin has predictably made heavy weather of the unwanted $50,000 donation by Esat Digifone via Telenor to Fine Gael in late December 1995. He has chosen to ignore the fact that in February 1996 when the then Leader of Fine Gael and Taoiseach John Bruton learned of the donation Moriarty records at Para 62.04 that the “donation was unwelcome to the Party and was rejected by the Party Leader.” He also chooses to ignore that unknown to John Bruton instead of these monies being returned they were retained in an offshore account by the late Mr David Austin and subsequently as Moriarty records in the same paragraph “introduced to Party funds, disguised as a personal contribution by Mr Austin.”

It is clear from the Moriarty Report that Mr Jim Miley, based in Fine Gael Headquarters, who received this sum on behalf of Fine Gael, believed the monies received to be a personal donation by Mr Austin and when in receipt of them had no knowledge of what had occurred in February 1996. When subsequently learning of the origins of these monies, John Bruton for a second time rejected them. Only the late David Austin could have known why he conducted matters in this way and sought to furnish funds to the Fine Gael Party a second time that had already been rejected by the then Leader of my Party. It is grossly dishonest of Micheal Martin to turn the probity of John Bruton and the Fine Gael Party on it’s head and to engage in old style Fianna Fail smear politics. His conduct on this issue is proof that despite his promise of new politics from Fianna Fail nothing has really changed. This is starkly further illustrated by his choosing to besmirch the good conduct of the Fine Gael Party and to ignore the morally reprehensible conduct of his own party yet again referred to in the Moriarty Report on which he has remained silent.

Moriarty reports that in the context of the 1989 General Election that out of £160,000 raised from Custom House Docks and from Dr Michael Smurfit, £75,000 ultimately reached Fianna Fail some of it by a circuitous route which also involved curiously the late Mr David Austin “and the balance was retained by Mr Haughey for his own use and benefit” (para 62.06). Perhaps Deputy Martin would consider making some comment in which he acknowledged the different morality and value system as between Fine Gael and Fianna Fail. On the one side, there was a Fine Gael Leader and Taoiseach adamant that monies be returned to ensure that there could not even be an appearance of impropriety, whilst on the other side there was a Fianna Fail Leader and Taoiseach pocketing whatever he could for his own personal benefit. It’s worth reminding Deputy Martin that the Tribunal also found that about £250,000 (€336,500) was raised as part of a fund in 1989 to pay for medical treatment for Mr Haughey’s friend and colleague the late Brian Lenihan, but only £70,000 (€88,900) was paid out for Mr Lenihan’s treatment in the United States. The Report finds that a “sizable proportion” collected was “misappropriated by Mr Haughey for his personal use”. As is known, a report is presently awaited from another Tribunal on other matters relating to payments received by another Fianna Fail Taoiseach with whom Michael Martin served in Government until very recently.

I expected a more honest and straightforward response by Deputy Martin to the publication of the Moriarty Report. It is disappointing that the new approach to politics promised by him on 9th March last has been so rapidly abandoned. What Deputy Martin has attempted falsely and wrongfully to accuse Fine Gael of doing, one of his own former party leaders barefacedly did with impunity.

Finally, had previous Fianna Fail led governments rapidly responded to recommendations contained in the first Moriarty Report it is possible that some part of the banking disaster which is a consequence of catastrophic regulatory failures and lack of government oversight might have been avoided. It is noteworthy that in his speech yesterday Deputy Martin had nothing to say about the recommendations in the Moriarty report which address banking issues. Moriarty emphasises the importance of the Central Bank as Regulator actually regulating and it is worth quoting what is stated in paragraph 62.45 in his Report, “it cannot be overemphasised that what is required, in addition to the fact of regulation, is a culture in which forthright regulation is valued, not merely at a time of financial stringency, but at a time when it might be thought to be an unnecessary brake on commercial activity. Such a change of attitude can probably encouraged by increased vigilance on the part of elected representatives. It is nonetheless apt to observe, with some regret, that these and related matters were addressed in considerable detail in Part 1 of the Tribunals Report published in December 2006 without apparent consequence.” It wasn’t until after September 2008 that the former government started to address regulatory issues within our banking system. Micheal Martins deafening silence and failure to explain why, when in government, his party failed to immediately implement reform based on Moriarty’s 1996 concerns and recommendations, undermines entirely his personal political credibility.


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