High Court of Ireland Decisions

1. This is an action seeking a number of declarations and reliefs, the effect of which would be to stop the Tribunal of Inquiry, known colloquially as "The Moriarty Tribunal" and primarily relating to whether certain types of payments were made to the first named Plaintiff, former Taoiseach and Government Minister and Mr Michael Lowry, also a former Government Minister and the source of monies (if any) held for the benefit of either of them or "connected persons" as defined. The second named Plaintiff is the wife of the first named Plaintiff. The third named Plaintiff is the daughter of the first named Plaintiff and the fourth and fifth named Plaintiffs are sisters of the first named Plaintiff. The second to fifth named Plaintiffs inclusive are "connected persons" of the first named Plaintiff within the definition of that expression contained in the Resolutions leading to the establishment of the Tribunal.

There has been a certain amount of confusion as to the relevant issues in the case in as much as issues have effectively been added or abandoned at different times if one views the entire spectrum of the Statement of Claim, reply to the second to fourth named Defendants' Notice for Particulars, Amended Statement of Claim, Written Submissions, Oral Submissions and a sheet produced at the hearing by Counsel for the Plaintiffs containing twenty-four alleged issues. Although some pleading objections were raised in the written submissions of the State Defendants, I think it is fair to say that for the most part either the issues allegedly not pleaded were abandoned or not proceeded with or alternatively were argued without objection at the hearing.

For my own part, I would divide the issues into three categories and of course within each category there are a number of separate arguments or points being made. But the three fold division which I have discerned is as follows:-

(1) that the Order of the Taoiseach establishing the Tribunal was outside of his powers to make for the following reasons:-

(a) the 1921 Act pursuant to which the Tribunal was set up is merely procedural and does not itself empower the setting up of a Tribunal, it being argued that that power must derive from somewhere else and it being further argued that no such power in fact exists in this State notwithstanding that many such Tribunals have been established before;

(b) that a Resolution pursuant to which the Taoiseach acted was invalid in that the Senate was not properly convened;

(c) that a Tribunal under the 1921 Act must be for the purpose of inquiring into "a definite matter described in the Resolution as of urgent public importance" and that the matters in this case did not fall within that category both having regard to the terms of the Dunnes Payments Tribunal Report and the unfocused nature of the Terms of Reference;

(d) that the Terms of Reference were not proper Terms of Reference within the Act and were also constitutionally unfair as being hopelessly ambiguous; and

(e) that in passing the Resolutions the Dail and Seanad respectively acted in breach of the Constitution in the following respects:-

(i) it infringed the guarantee of equality before the law under Article 40.1 because the first named Plaintiff was allegedly singled out from among ex-Taoisigh, ex-Ministers, ex-TD's, Political Parties, other beneficial holders of monies in the Ansbacher Accounts and having regard to particular provisions in his case relating to "connected persons";

(ii) it breached the guarantee that the State would by its laws protect as best it might from unjust attack the Plaintiffs' good name;

(iii) it infringed the Plaintiffs' constitutionally guaranteed property rights under Article 40.3 and Article 43 in that the Plaintiffs would be forced to incur expense without any guarantee of indemnity in relation to costs;

(iv) it unconstitutionally invaded the Plaintiff's constitutional right of privacy under Article 40.3;

(v) it subjected the Plaintiffs to a potential liability for costs under the Tribunal of Inquiry (Evidence) (Amendment) Act, 1997 thereby allegedly infringing the prohibition against retrospective legislation contained in Article 15.5 of the Constitution;

(vi) in so far as the Terms of Reference required an investigation into acts done and decisions made by the first named Plaintiff while in office it infringed his alleged right to privilege under Article 15.12; and

(vii) the appointment of a Judge of the High Court as Sole Member of the Tribunal was an infringement of the separation of powers established by the Constitution.

(2) that the Tribunal of Inquiry (Evidence) Act, 1921 was not consistent with the Constitution and was not carried over under it. The main argument on this is that the Tribunal is allegedly administering justice within the meaning of Article 34 but the absence of a right of appeal in relation to costs orders is also being availed of in the constitutional attack on the legislation. As a subsidiary matter, it is also alleged that the new costs provisions in the 1997 Act operate retrospectively and that accordingly they are invalid having regard to the Constitution; and

(3) that the Tribunal is not being conducted in accordance with fair and constitutional procedures and that there is no constitutional justification for the Tribunal carrying out its work otherwise than in public up to now.

In accordance with normal practice, I must first deal with those substantive issues which do not involve an attack on the constitutionality of any statutory provision. The question of unconstitutionality of any statutory provision or of inconsistency of any such provision with the Constitution can only arise if the Plaintiff failed to have the Tribunal proceedings stopped on foot of their other substantive arguments. But in relation to those arguments, that is to say, the arguments not involving a constitutional attack on statutory provisions, I will leave all the questions relating to the Terms of Reference to the last as these are the questions which have caused me most difficulty. Only after I have dealt with all the substantive issues including the questions of constitutionality of statutory provisions, will I consider the questions relating to alleged unfair or unconstitutional procedures on the part of the Tribunal.

Adopting that scheme, I must start with the question of whether the 1921 Act confers the power on the Taoiseach to establish such a Tribunal or whether it is procedural only. Many Tribunals have been set up in this country of a kind contemplated by the 1921 Act and it has always been done by Ministerial Order following upon the relevant Resolutions by the Dail and Seanad. I am quite satisfied that the Taoiseach did have the power to set up this Inquiry. But it seems to me to be immaterial whether the Act directly confers the power or not. It would be inherent in the executive powers of the State that the Taoiseach could establish a Tribunal of this kind and if he does so, following upon the Resolutions under the 1921 Act, the provisions of that legislation apply to such Tribunals. There has of course also been a suggestion made in argument that the Dail and Seanad had no powers to make such Resolutions in the absence of Standing Orders enabling them to do so and that any old British Standing Orders would not have been carried over. In my opinion, there is a presumption of both validity and constitutionality in respect of the two Parliamentary Resolutions and the Plaintiffs have not discharged the onus which would be on them to rebut that presumption. I hold, therefore, that the Dail and Seanad were entitled to pass the Resolutions and that the Taoiseach was then and thereby entitled to set up a Tribunal of the kind contemplated by the 1921 Act.

I move now to the questions of alleged unconstitutionality in the Resolutions. Some general comments are apposite at this point. Mr Haughey quite clearly takes the view that the Dunnes Payments Tribunal found no impropriety on his part, that there was nothing at all of public concern arising out of it in relation to him which could justify the setting up of the new Tribunal and on his behalf, particular emphasis is placed on the fact that The Ethics and Public Office Act, 1995 was not in place during his periods of office. This entire perception is misconceived. In explaining the correct position, I could not improve on the paragraph contained in the written submissions on behalf of the State Defendants at page 10. I therefore quote it in full:-

"The reason that the Tribunal is confined to determining whether payments were made in circumstances 'giving rise to reasonable inference that the motive for making the payment was connected with any public office' held by Mr Haughey or that had the potential to influence the discharge of such office is clear. Such recommendations as may be made by the Tribunal encompass the object of insuring the integrity of public administrations. The integrity of public administration is adversely affected, not merely by payments made for particular political favours, but also by payments made in circumstances giving rise to a feeling on the part of the body politic or a section thereof that the motive for making the payment was connected with a public office held by the recipient even if the motive for making that payment was not connected with such office. The point hardly needs elaboration, but ethical behaviour in public office surely incorporates more than simply refusing to take bribes, it demands of an office holder that he conduct him or herself in such a manner as does not give rise to an apprehension or inference on the part of those making up the democratic society in which we live that the motive for making a particular payment was connected with any public office."

I agree with every line of that passage. Mr Justice McCracken, in his report following on the Dunnes Payments Tribunal of Inquiry, expressed similar sentiments. At page 51 of his report, he said the following:-

"Notwithstanding the fact that there appears to be no political impropriety involved, the Tribunal considers it quite unacceptable that Mr Charles Haughey, or indeed any member of the Oireachtas, should receive personal gifts of this nature, particularly from businessmen within the State. It is even more unacceptable that Mr Charles Haughey's whole lifestyle should be dependent upon such gifts, as would appear to be the case. If such gifts were to be permissible, the potential for bribery and corruption would be enormous.

If politicians are to give an effective service to all their constituents, or to all the citizens of the State, they must not be under a financial obligation to some constituents or some citizens only. By allowing himself to be put in a position of dependency, Mr Charles Haughey failed in his obligations to his constituents and to the citizens of this State, and indeed has devalued some of the undoubtedly valuable work which he did when in Office."

It follows, therefore, that irrespective of whether any illegality ever occurred, there were clearly questions of serious public concern as to the ethical behaviour of Mr Haughey. It would be preposterous to suggest that the obligation of ethics in public office commenced only with the passing into law of The Ethics and Public Office Act, 1995. The legitimate public concern which I have identified, largely disposes of the arguments of unconstitutionality in the Resolutions of the Dail and Seanad. In the light of the findings of the Dunnes Payments Tribunal, it is bordering on the absurd to suggest that Mr Haughey is being unfairly or unconstitutionally discriminated against as compared with other ex-Taoisigh, ex-Ministers, ex-TD's or as against political parties or as against other Ansbacher account holders. The position of Mr Haughey in public life, the nature and the amounts of the gifts to him by Mr Dunne, and the lifestyle evidence singled him out and he cannot complain, in my view, that he is in some way or other being discriminated as against others. Some invasion of Mr Haughey's constitutional rights such as his right of privacy, etc is justified having regard to the legitimate public concern.

The absence of a right of appeal from a Costs Order and the absence of an advance indemnity in relation to costs are not grounds for impugning the Resolutions whether under the Constitution or otherwise. Costs will be dealt with by the Tribunal at the end of the entire Inquiry, and I have no reason to believe that the Sole Member will not deal with the costs issue in a correct and constitutional manner. If he imposes a costs obligation in excess of or without jurisdiction, judicial review will lie as a remedy. I do not accept the submission made by Mr McGonigal that because the report will have gone to the Oireachtas, judicial review cannot lie. A party wrongly ordered to pay costs will not be divested of his own personal constitutional rights and any attempt actually to recover those costs from him must surely be subject to the superintendence of the courts and at the very least the courts would have power to grant injunctive relief. As the question of costs does not really arise yet, I am reluctant to make any comments on it but as it has featured so prominently in the arguments I think I should say this. In my opinion, power to award costs under the 1997 Act is confined to instances of non co-operation with or obstruction of the Tribunal but that of course would include the adducing of deliberately false evidence and that is why the statutory provision specifically requires regard to be had to the findings of the Tribunal as well as all other relevant matters. However, I merely express that view by way of obiter dicta because, in my opinion, the issue of costs can only properly come before the High Court by way of some kind of judicial review or injunctive proceedings after costs have been awarded. I accept that Mr Haughey and perhaps the other Plaintiffs may have to incur cost in providing the Tribunal with the necessary information and without there being any advance guarantee of indemnity but what there is is a guarantee that justice will be done in relation to costs at the end of the Tribunal. It would not be practical or reasonable to expect an advance promise of indemnity. Any monetary loss incurred on this account is simply an unfortunate consequence of the legitimate right to hold such an Inquiry.

It is next alleged that the constitutional right of privacy of the Plaintiffs is infringed by virtue of what is described as a "trawl" through the private financial affairs of each of them. This so called "trawl" is a necessary consequence of the legitimate right to hold the public inquiry provided of course that the public inquiry itself is within reasonable and constitutional limits, a matter to which I will be returning.

The arguments about retrospection are misconceived for the reasons put forward by the State in oral argument and in written submissions. Article 15.5 merely provides that the Oireachtas shall not declare acts to be infringements of the law which were not so at the date of their commission. The costs provision in the 1997 Act, if applied to Mr Haughey, does not come within the constitutional prohibition in my view. Furthermore, if I am right in my interpretation of that provision, it would be Mr Haughey's behaviour at the Tribunal which would lead to a Costs Order being made against him and not any behaviour in the past.

The next issue is privilege. Privilege can undoubtedly be claimed in respect of utterances in the Dail. But there are thousands of acts, utterances and decisions which a Taoiseach or Minister may make that are not covered by Dail privilege. Indeed, the very separation of executive from the legislature underlines that point. If there is any evidence sought by the Tribunal which is claimed to be covered by the constitutional privilege, that can be debated upon and ruled on in due course but to argue that all acts done and decisions made by Mr Haughey as Taoiseach or as a Minister would be protected by the Dail privilege is, in my view, wholly unstateable.

On the question of appointing a judge as Sole Member of the Tribunal, I cannot see that this in any way involves an infringement of the constitutional separation of powers. The Tribunal is not in any sense a Court and there is nothing in the 1921 Act which prevents a person other than a Judge or indeed a person other than a lawyer from being Sole Member or Chairman of a Tribunal. It may well be a matter of legitimate public debate as to the extent to which it is appropriate that Judges should be Chairmen of Boards, Commissions, Tribunals, etc, but that debate would merely arise out of a legitimate concern as to a potential conflict of interest in the future. It could not be suggested that there is anything illegal or unconstitutional about Judges being appointed to any of these positions provided of course that they do not receive any remuneration. Traditionally, it has been thought that a Judge because of his professional training and independence is ideally suited to these positions and particularly of course if the body has to find facts. But in Mr Justice Moriarty becoming Sole Member of this Tribunal there is in no sense some invasion by the Courts into the realm of the legislature or executive. I cannot see, therefore, that the argument put forward is sustainable.

Originally the Plaintiffs alleged that neither the Dail nor the Seanad were properly convened. At a later stage the claim that the Dail was not properly convened was abandoned but the claim that the Seanad was not properly convened was persisted in. At the hearing I decided to rule out all evidence directed to showing that there was some irregularity in the convening of the Seanad for the purposes of the Resolution as it seemed to me that these matters were not justiciable in the courts on the grounds of the constitutional separation of powers. The Dail and the Seanad regulate and enforce their own procedures. Accordingly, this ground of objection to the Tribunal must also fail.

I now turn to the questions which have caused me very considerable difficulty indeed. These are the issues arising from the Terms of Reference. There is a presumption of constitutionality and validity of these Dail and Seanad Resolutions and a court would be very slow to hold that having regard to the contents of the Terms of Reference, a Resolution was either ultra vires the 1921 Act or repugnant to the Constitution. But unfortunately, genuine concerns do arise on these fronts in this case because of the undoubted ambiguities and lack of clarity in the Terms of Reference. It was clear at the oral hearing that Counsel for the State, Mr Clarke, had himself considerable difficulty in interpreting some of the provisions and in reconciling apparent inconsistencies. But the problem is not just one of ambiguity. There is also the problem that on certain interpretations there may be well founded arguments that Mr Haughey's constitutional rights and indeed those of the other Plaintiffs would be infringed in a manner that could not be justified by the legitimate concerns giving rise to the Inquiry. I would apply the following principles in interpreting the Terms of Reference:-

(1) Having regard to the presumptions which arise from the separation of powers, this Court should make every effort to interpret the Terms of Reference in such a way that the Tribunal is not invalidated.

(2) No evidence has been adduced before this Court as to any of the debates in the Dail or Seanad leading up to the passing of the Resolutions nor do I think it would have been proper to have adduced such evidence and therefore in interpreting the Terms of Reference, I am having no regard whatsoever to anything that might have been publicly said at the time that they were drafted and let me add that, as it happens, I have no knowledge or recollection of anything relevant that was said at the time.

(3) I do not think that the Resolutions should be interpreted as though they were statutes. A court must make allowances for the political climate and urgency under which Resolutions of this kind would come to be drafted. It is for this reason, I think, that the British Royal Commission chaired by Lord Justice Salmon (as he then was) emphasised that the Tribunal should clearly interpret its own Terms of Reference. In this case the Tribunal was reluctant to do that but to some extent that reluctance arose out of a minor and, in my view, fairly irrelevant dispute as to whether the Tribunal was interpreting the expression "substantial payments" as meaning £500. The Tribunal was, in my view, right not to answer that question and at the same time was entitled to seek details of payments of £500 or more. However, from Mr Haughey's point of view there were much more serious questions of interpretation of the Terms of Reference, the main one being how far back did he have to go and I think questions relating to dates, etc should properly be clarified by a Tribunal where there is ambiguity even though of course the Tribunal's initial interpretation of its own Terms of Reference may not be the final one as counter arguments may be made later. I would have preferred to have left it to the Tribunal to interpret its Terms of Reference but I think that, in the circumstances in which this case comes before this Court now, this Court must take on the task of interpreting the relevant ambiguities.

Ideally, in my view, the Resolution should clearly and concisely state what is the "definite matter" or "definite matters" of urgent public importance to be enquired into. But as I have already indicated, I do not take the view that a Resolution not in perfect form must necessarily fail. The parties affected by it are entitled to know what the Tribunal considers it means. In the peculiar circumstances of this case, that task is now falling on this Court. I will go through each of the relevant paragraphs in turn. The first is paragraph (a) and it reads as follows:-

"Whether any substantial payments were made, directly or indirectly, to Mr Charles Haughey (whether or not used to discharge monies or debts due by Mr Charles Haughey or due by any company with which he was associated or due by any connected person to Mr Charles Haughey within the meaning of The Ethics in Public Office Act, 1995 or discharged at his direction) during any period when he held public office commencing on the 1 January, 1979 and thereafter up to 31 December, 1996 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 problems arising from this paragraph are as follows:-

(1) What is meant by "public office"? Is it confined to Ministerial office or does it include being a TD?

(2) If it is confined to Ministerial Office, then the expression "during any period when he held public office commencing on the 1 January, 1979" would seem to exclude any intermediate period when he was in opposition (unless Leader of the Opposition is to be regarded as a "public office") but that does not reconcile with the reference to "and thereafter up to the 31 December, 1996", as clearly that includes a substantial period after he had retired altogether.

(3) Should the word "any" before the word "period" be effectively ignored as suggested by Mr Clarke, Counsel for the State.

There is no clear cut answer to these questions. In view of the fact that the expression "Ministerial office" was used elsewhere in the Terms of Reference, a legitimate argument can be made that "public office" is a wider term and includes Mr Haughey's period as a TD. But I think that there are indications when one reads the Terms of Reference as a whole that the expression "public office" means Ministerial office. In expressing this view I am particularly having regard to paragraph (i) because that refers to "a holder of public office for whose benefit money was held in any of the accounts referred to at (b) or (f)" in the course of his/her public office, yet paragraph (b) and paragraph (f) respectively refer to "any other person who holds or has held Ministerial office". It would seem strange that paragraph (b) and paragraph (f) were not to apply to TD's but only to Ministers and yet paragraph (i) would on one view extend to TD's. I have come to the conclusion that there is only one rational way by which paragraph (a) can be interpreted and that is in line with the argument put forward by Mr Clarke. I think that the paragraph is making a distinction between Mr Haughey's ministerial career prior to the 1 January, 1979 and his ministerial career after that date. It seems to me that the only sensible interpretation which can be given to the paragraph is that it was intended that the Tribunal should enquire into any substantial payments made to Mr Haughey and the other persons referred to at any time between the 1 January, 1979 and the 31 December, 1996. The inclusion of the word "thereafter" clearly indicates that the Dail and Seanad intended the Tribunal to investigate whether payments made to Mr Haughey after he retired might still be connected with his having held Public Office and might be of a kind which would have given rise to the reasonable inference suggested.

I move now to paragraph (b). This reads as follows:-

"The source of any money held in the Ansbacher Accounts for the benefit or in the name of Mr Charles Haughey 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 Haughey 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 Haughey."

The problems of interpretation which arise here are as follows:-

(1) What is meant by the word "held". Does it mean currently held or ever held?

(2) Alternatively, if it means held for a particular period, then what period?

(3) Does the expression "any other bank accounts discovered by the Tribunal to be for the benefit or in the name of Mr Haughey . . . etc" mean any and every bank account during a life time and if not, in what way is it limited?

Despite some over hasty comments expressed by me at the hearing at one point, it would make no sense, in my view, for the word "held" to be interpreted as meaning "currently held". This would be so whether "current" meant current at the time of the Resolution or current at the time of the Taoiseach's Order. Obviously, there could have been movements in these accounts following on the Dunnes Payments Tribunal which would defeat the purpose of the Resolutions. I think, therefore, the word "held" must mean ever held. But in the case of the Ansbacher Accounts that means the Ansbacher Accounts as identified by Mr Justice McCracken in the Dunnes Payments Tribunal Report. These accounts were apparently opened in the mid nineteen seventies. But if I am right in that interpretation there is then serious difficulty about the expression "any other bank accounts" because the word "held" cannot possibly mean one thing in the case of the Ansbacher Accounts and something quite different in the case of the other bank accounts. On a literal interpretation, therefore, the Tribunal would be required to enquire into every other bank account ever held by Mr Haughey or the members of his family who are "connected persons" and such an inquiry would be, in my opinion, excessive, oppressive and on a balancing of constitutional rights, one would have to come down in favour of the Plaintiffs. But I do not think that the paragraph need be given such an unconstitutional interpretation. I think that the reference to "in any other bank accounts discovered by the Tribunal" must not be read in isolation from the reference to the Ansbacher Accounts, and the general time span of the inquiry. The primary purpose of paragraph (b) is to investigate the Ansbacher Accounts which featured prominently in the Dunnes Payments Tribunal Report. What I think is contemplated in paragraph (b) is that in the course of the investigation of the Ansbacher Accounts or independently of that investigation the Tribunal might find other bank accounts containing substantial sums for the benefit of Mr Haughey or a "connected person" but not necessarily deriving from the Ansbacher Accounts. I think that the reference to "any other bank accounts" should be interpreted as confined to bank accounts more or less within the period covered by the Ansbacher accounts. This may well be the view of the Sole Member in that the Discovery Orders served on the Bank of Ireland and other banks required discovery of bank accounts going back only as far as 1 January, 1974. If my interpretation of this is wrong and that paragraph (b) does envisage an investigation of all bank accounts historically held by Mr Haughey and the "connected persons", I would have grave doubts as to the constitutional legitimacy of such an inquiry given the long periods of time which would be involved.

If my interpretation of paragraph (b) is correct no real problem arises out of paragraph (c) except the question of whether "public office" includes TD. For the reasons which I have indicated I think that it probably means Ministerial Office. Otherwise I am unable to explain paragraph (i).

Again if I am right in my interpretation so far, I do not see any problem arising from paragraph (d). Mr McGonigal argues that the expression "did any act or made any decision" needs clarification but I do not think it does. In my opinion, it is simply plain English.

As I have indicated, the Terms of Reference are undoubtedly ambiguous in some material respects. As a matter of basic fairness, the Plaintiffs were entitled to know how the Tribunal itself resolved these ambiguities. As that explanation was not forthcoming, the Plaintiffs had to come to Court and this Court has reluctantly had to form a view on how the Terms of Reference are to be interpreted. The Terms of Reference, as construed by this Court, are not ultra vires the Act and therefore subject to the relevant legislation being in accordance with the Constitution there is nothing to prevent the Tribunal proceeding accordingly.

I must therefore now consider the question of whether the relevant statutory provisions are in accordance with the Constitution. In the case of the 1921 Act the issue would obviously be whether it was consistent with the Constitution and therefore carried over. In the case of the later Acts, it would be a question of whether they are valid having regard to the Constitution and the presumption of constitutionality would apply to those later Acts. Indeed it may even apply to the 1921 Act having regard to the fact that it has been considered and amended by the Oireachtas.

The principal basis on which it is alleged that the relevant statutory provisions are inconsistent with or repugnant to the Constitution is that the Tribunal, though not a Court of Law, is administering justice. Particular emphasis is placed on the new provisions relating to costs and on the general powers of compelling witnesses and the production of documents. I do not find it necessary to go beyond the judgments of the Supreme Court in Goodman International v Hamilton (No 1) [1992] 2 IR 542. In particular, I think it useful to cite at length the passage from the judgment of Finlay CJ in that case at p 589 of the Report and under the sub-heading "Article 34":-

"The meaning of the constitutional concept of the administration of justice involved in this Article was identified in the test set out in the judgment of Kenny J in the High Court in McDonald v Bord Na gCon [1965] IR 217 in a passage which was later accepted by the decision of the Supreme Court in the judgment of Walsh J. I, like Costello J in the course of his judgment in this case, would adopt them as being appropriate tests. The passage is as follows:-

'It seems to me that the administration of justice has these characteristic features:-

(1) a dispute or controversy as to the existence of legal rights or a violation of the law;

(2) the determination or ascertainment of the rights of parties or the imposition of liabilities or the infliction of a penalty;

(3) the final determination (subject to appeal) of legal rights and liabilities or the imposition of penalties;

(4) the enforcement of those rights or liabilities or the imposition of a penalty by the Court or by the executive power of the State, which is called in by the Court to enforce its judgment; and

(5) the making of an Order by the Court which as a matter of history is an order characteristic of courts in this country.'

I am satisfied that with the possible exception of the first clause in this statement of the characteristics of the administration of justice, where it speaks of a controversy as the existence of a violation of the law, the activities of this Tribunal of Inquiry fulfils none of the other fundamental conditions or characteristics of the administration of justice as laid down in this case. It can be argued, I suppose, that by reason of the inquisitorial nature of the Tribunal that it is not accurate to speak of a controversy concerning the violation of the law, but even if it is, and I would incline to the view that it would come within that category, that fact alone could not conceivably make the proceedings of this Tribunal an administration of justice within the meaning of Article 34 of the Constitution.

In a sense, a positive test which can be applied, and very strikingly, is that contained in clause 5 of the principles laid down by Kenny J. It is no part, and never has been any part of the function of the judiciary in our system of law, to make a finding of fact, in effect, in vacuo and to report it to the legislature. The courts do not even exercise a function of making, in cases between litigants, a finding of fact which does not have an effect on the determination of a right."

Important comments on and elaborations of this list of characteristics of administration of justice formulated by Kenny J have been made by McCarthy J and O'Flaherty J among others and were cited in this Court. I do not find it necessary specifically to refer to them in this judgment. They do not in any way derogate from the principles in the passage of Finlay CJ which I have cited. It is quite clear from the view of the law expressed in that passage that the kind of Tribunal contemplated by the Tribunal of Inquiry (Evidence) Act, 1921 as amended does not involve the administration of justice within the meaning of Article 34 of the Constitution. Although Costs Orders and Discovery Orders, etc are made by Courts every day of the week in administering justice and form an essential part of the administration of justice this does not mean that such orders are not appropriate in the context of a Tribunal having a different function and not administering justice. In support of a contrary view Mr McGonigal relies on Murphy v Dublin Corporation [1972] IR 215 and in particular on a passage of Walsh J at p 233. But in my view, that judgment is being relied on out of context. The dispute in that case was whether the State could plead public interest privilege in relation to certain documents effectively on the mere certification by the relevant Minister. In response to that argument Walsh J pointed out that:-

"Under the Constitution, the administration of justice is committed solely to the judiciary in the exercise of their powers in the courts set up under the Constitution. Power to compel the attendance of witnesses and the production of evidence is an inherent power of the judicial power of Government of the State and is the ultimate safeguard of justice in the State".

But the reference to judicial power in that passage is in a quite different context from the issue of whether the Tribunals can make Orders for Discovery. I do not think that it has the slightest relevance to that issue. In my view, neither the 1921 Act nor any of the amending statutory provisions offend the Constitution.

Finally, I turn to the issues relating to the actual conduct of the proceedings in the Tribunal so far. I have already touched on one important matter in this connection and that is the obligation on the part of the Tribunal to explain the Terms of Reference at least on a provisional basis if fair procedures require that that be done. With this in mind, I think it helpful to quote in full paragraphs 77 to 79 of the Report of the British Royal Commission on Tribunals of Inquiry in 1966 under the Chairmanship of Lord Justice Salmon (as he then was). Paragraphs under the general heading "Terms of Reference" read as follows:-

"77. In view of the inquisitorial nature of the proceedings of the Tribunal, the Terms of Reference require careful consideration and should be drawn as precisely as possible.

78. As the agitation for an Inquiry is very often the result of nothing more than general allegation and rumour it is necessary to keep the Tribunal within reasonable bounds. It is not of urgent public importance merely to satisfy idle public curiosity. The Act lays down rightly in our view, that what is to be enquired into shall be a 'definite matter'. Accordingly, no Tribunal should be set up to investigate a nebulous mass of vague and unspecified rumours. The reference should confine the Inquiry to the investigation of the definite matter which is causing a crisis of public confidence. On the other hand it is essential that the Tribunals should not be fettered by Terms of Reference which are too narrowly drawn.

79. The Tribunal should take an early opportunity of explaining in public its interpretation of its Terms of Reference and the extent to which the Inquiry is likely to be pursued. As the Inquiry proceeds, it may be necessary for the Tribunal to explain any further interpretation it may have placed on the Terms of Reference in the light of the facts that have emerged."

I would adopt these views with one modification. At this stage the Moriarty Tribunal is engaged in an evidence gathering exercise and in that context I do not think that the requirement for fair procedures would dictate that there be some kind of formal public hearing in which the Tribunal would give a preliminary explanation of its Terms of Reference, but persons intimately affected by the Inquiry and in particular in the context of this case, Mr Haughey and the relevant members of his family ought at the very least to have been written to personally or through their agents clarifying any serious ambiguity in the Terms of Reference particularly relating to dates.

This brings me to the more specific question of whether the Discovery Orders ought to have been made without advance notice of a proposal to make them to the Plaintiffs in so far as their bank accounts were being sought from the banks or at least without some opportunity to object being given. I think that the Tribunal probably took the view that as it was not seeking these documents directly from the Plaintiffs but rather from their banks it was not necessary to give the Plaintiffs any notice or any opportunity to object to the Discovery Orders. While I can understand that point of view, I am bound to say that I do not think that it was a fair procedure in all the circumstances of this inquiry. Assuming that I am right in my view that the relevant legislation conforms with the Constitution and that the terms of the Resolutions and appointment of the Tribunal are intra vires and do not suffer from any constitutional infirmity, then it is perfectly clear that the Tribunal would be prima facie entitled to make Orders of Discovery in relation to the bank accounts. In this regard it is immaterial whether Mr Haughey or each of the other Plaintiffs has a constitutional right to privacy in relation to his or her bank accounts or merely a contractual right as between himself or herself and the bank. Even if he or she had a constitutional right it is one which would have had to give way to the legitimate public interest in the efficient conduct of the Tribunal. In other words, if there was an interference in this respect with the constitutional right to privacy it would be a reasonable interference. I do not intend to review the American case law cited as it seems to me that the question of whether the right to privacy in relation to a bank account is a constitutional right or not is not of any importance to the matters which I have to decide. But it is a completely different matter as to whether the Plaintiffs were entitled to receive advance notice of an intention to make Discovery Orders against their banks and/or ought to have been given an opportunity to make representations against such Orders being made. In this context, I will first consider the position of the "connected persons". As a general proposition it is probably fair to say that where there is some concern that a particular person may be receiving large gifts of money that concern will almost always extend to the possibility that such gifts were placed into the names of relatives of the intended beneficiary or companies controlled by him or her. Quite apart from that general proposition there was some limited evidence in the report of the Dunnes Payments Tribunal that benefits were received from Mr Dunne by certain members of Mr Haughey's family. I had raised the query with Counsel as to whether there was a difference between probing into the financial affairs of a wife or children on the one hand and of a sibling on the other hand. I had wondered was it going too far and therefore in a sense could it be said to be an unreasonable infringement of constitutional rights to extend the probe into the bank accounts of Mr Haughey's brothers and sisters. However, I am satisfied from the submissions made to me by Counsel that going back a long number of years it has been the practice when a statute brought in "connected persons" to include not merely spouse and children but also siblings and of course that is what was done in the case of The Ethics and Public Office Act, 1995. I have come to the conclusion, therefore, that there was nothing per se unconstitutional in extending the probe into the bank accounts of "connected persons" as defined in the Terms of Reference. But how a Tribunal should treat such "connected persons" is quite another matter. Although on a literal reading of the Terms of Reference the "connected persons" appear to be put on an equal footing with Mr Haughey himself, it is perfectly obvious that this is not intended. The "connected persons" are brought in only for the purposes of defining the kind of benefits to Mr Haughey which the Houses of the Oireachtas had in mind. Put bluntly, if a Taoiseach knowingly acquiesced in large commercial concerns making gifts to members of his family this would be considered to be not only a breach of ethics by the Taoiseach but a matter of grave public concern. It might also be unethical on the part of the members of the family to have received such payments but if so that would be a breach of private ethics on their part and would not as such be a matter of public concern which could lead to the establishment of a public tribunal. It follows, therefore, that the "connected persons" have to be treated, in my view, rather differently from the person with whom they are connected. The Tribunal decided from the very start to probe the bank accounts of the "connected persons" at the same time as it was probing the bank accounts of Mr Haughey himself. It might not necessarily have adopted that approach. But I am not privy to the Tribunal's investigations and I have no way of knowing whether it was a reasonable approach or not. In fact I must assume that it was a reasonable approach. But what I find difficult to regard as reasonable is the failure to communicate in some way whether by letter or otherwise with the "connected persons" explaining them the context in which they were becoming involved and the reasons why bank documentation of theirs was required. It is not the role of this Court to evaluate the evidence of Miss Ethna Haughey or Miss Maureen Haughey but it would seem to me that irrespective of whether their evidence is accurate or not there is always at the very least the possibility that a so-called "connected person" would have had no political or financial or business links with the person to whom they are "connected" and had led perfectly normal and modest lives as asserted by the two Miss Haugheys. Such a person who suddenly learns that his or her bank accounts have been commandeered by a tribunal is naturally likely to be extremely disturbed and upset as the two Miss Haugheys allege they were. But quite apart from that, there may well be reasons in any given case why such "connected persons" may want to resist an Order for Discovery or may put forward arguments for a limited Order. For instance, the evidence of Mrs Mulhern might well suggest that she would have sought clarification in relation to and perhaps sought limitations on an Order for Discovery in respect of her bank accounts. I want to make clear at this point that I am not saying that there may not be exceptional circumstances where a tribunal would be justified in calling upon banks to produce bank accounts of their customers without giving any prior notification to the customers even in a case where the customer was a so called "connected person". One can undoubtedly think of the extreme situation where there might be some justified apprehension on the part of the Tribunal that relevant documentation might be destroyed if that was not done. But there is no suggestion of anything like that in this case. The banks were never requested not to inform their customers of the Discovery Orders. A tribunal has to invent its own fair procedures because it is not a Court. Its proceedings are investigative rather than adversarial. I would not lay down any hard and fast rule as to what any particular procedure should be but on the evidence before me I would be of the view that the second, third, fourth and fifth named Plaintiffs ought to have received prior notice of an intention to make the Discovery Order against the banks to enable them to raise objections, or at the very least ought to have been served with copies of the Discovery Orders with an accompanying note giving them a right to apply to the Tribunal to have the Orders varied or discharged.

The position of Mr Haughey is somewhat different from that of a "connected person". The Tribunal would have been entitled to expect that he would know that Discovery Orders would obviously be made or at least would be likely to be made against his banks having regard to the Terms of Reference. But due to the ambiguities he could not be expected to know the period for which discovery would be sought. I think, therefore, that in the absence of clarification of the Terms of Reference by the Tribunal, Mr Haughey also was entitled to an opportunity in some form to object to the Discovery Orders on his banks. By letter of 12 December, 1997 from the solicitors for the Tribunal to the solicitors for Mr Haughey, Mr Haughey was invited to apply to have the Discovery Orders varied or discharged. He declined the invitation. But having done so, he cannot legitimately complain about unfairness.

Even though I do not believe that fair procedures were adopted in and about the obtaining of the Discovery Orders against the banks in relation to the other Plaintiffs' accounts, I do not think that the unfairness which occurred was sufficiently fundamental to render void proceedings so far of the Tribunal. I am particularly bearing in mind that the accounts required went back only to 1974. An Order quashing the Discovery Orders should be refused as a matter of discretion. I am satisfied that the Tribunal acted bona fide and I am equally satisfied that the Plaintiffs have now had an opportunity of airing their legitimate complaints. I think that it would be pointless to declare void the Discovery Orders and force the Tribunal to embark on a new and cumbersome procedure before it would be able to get back whatever bank accounts it now has. The Tribunal at present is at an investigative stage only and none of the information in the bank accounts will be used in the public forum unless it is relevant. Otherwise it will be kept confidential.

There are also other complaints against the Sole Member of the Tribunal. Objection has been taken to his correspondence with the Chief Whip of the Government and the Fianna Fail Party. That arose in the context of clarification being sought and given in a very narrow context and I do not think that there was anything unfair or discriminatory in the way the Tribunal handled the matter.

The next complaint against the Tribunal is the fact that it has been carrying on its proceedings in private. It is inherent in the nature of an Inquiry of this kind that all the preliminary work will be done in private. The express prohibition on refusing to allow the public or any portion of the public "to be present at any of the proceedings of the Tribunal" contained in the 1921 Act refers, in my view, to the actual hearings following on the investigations and even then the Tribunal is empowered to hear evidence in private if it is in the public interest expedient so to do for reasons connected with the subject matter of the Inquiry or the nature of the evidence to be given. The private conduct of its investigation and evidence gathering so far by the Tribunal is not prohibited by the Act or even if there were any doubt about this apparently the Sole Member has made an Order permitting the proceeding to be dealt with in private.

I will therefore refuse the specific Declarations and Orders sought in the Amended Statement of Claim but I will make the following limited Declarations:-

1. A Declaration that the Plaintiffs are entitled, if they so request, to have a prima facie explanation from the Tribunal of any relevant ambiguities arising in the Terms of Reference.

2. A Declaration that the second, third, fourth and fifth named Plaintiffs and each of them was entitled to be given a reasonable opportunity to object to Orders of Discovery by the Tribunal in respect of their bank accounts.