Mahon Tribunal barred from examining Fitzwilton payment

THE Mahon Tribunal has no jurisdiction to hold a public hearing on £30,000 made by the Fitzwilton Group as a political contribution to Fianna Fáil, the Supreme Court ruled yesterday.

The June 1989 payment was made via the then Minister Ray Burke for the Fianna Fáil party.

The five judge Supreme Court in a unanimous decision said the Planning Tribunal had failed to comply with a part of its amended terms of reference and has no jurisdiction to hold a public hearing in relation to the £30,000 Fitzwilton module.

It was not necessary, Ms Justice Susan Denham said, to grant an order of prohibition from holding the public hearing as the court had found there was a lack of jurisdiction on the tribunal’s part.

She granted a declaration that the tribunal has failed to comply with a paragraph of the amended terms of reference which refers to additional matters to go to public hearing and which set a deadline.

The Fitzwilton Group had appealed the High Court’s refusal to restrain the Mahon Tribunal from holding a public hearing into the payment in 1989 by one of its companies.

The case centred on the amended terms of reference of the tribunal as set down by the Houses of the Oireachtas in December 2004 which listed specific matters which were to proceed to a conclusion. It also gave the tribunal a discretion to consider additional matters but required steps to be taken before a stated date.

Fitzwilton, in its appeal against an earlier High Court decision, had contended the amended terms of reference required the tribunal to stipulate in writing what matters would go to public hearing by May 1, 2005, and it claimed the Fitzwilton payment was not so stipulated.

Last year, Mr Justice Kevin Feeney said the High Court was satisfied that a tribunal document of April 28, 2005, was clearly a written record of the decision taken by the members of the tribunal on that date listing the additional matters which should proceed to public hearing.

The appeal, Ms Justice Denham said, turned on the construction of the paragraph in the amended terms of reference which deal with a discretion to deal with additional matters but before a stated date.

The question was whether the tribunal complied with that in its document of April 28, 2005.

The concept, the judge said, behind the establishment of a tribunal is that there be an inquiry into definite matters as a matter of urgent public importance.

The fact, she said the tribunal is still inquiring 10 years later is “the antithesis of an urgent public inquiry”.

Under the mandatory requirement of the Houses, the tribunal was required to consider, decide and record what additional matters should go forward to public hearing and this had to be done by May 1, 2005.

“The document of April 28 clearly indicates a postponement of the decision. This is not a record of a decision to proceed to public hearings,” Ms Justice Denham concluded.

Outside the Supreme Court a spokesman for the Fitzwilton group said it was very pleased with the decision and Fitzwilton had always believed the tribunal had failed to comply with the terms of reference.