US$50,000 Telenor donation – Opinion of John Rogers SC
Mr. John Rogers SC is one of Ireland’s foremost and respected Senior Counsel. Mr. Rogers served as Attorney General of Ireland from 1984 to 1987. He is regarded as an eminent authority in relation to the law pertaining to Tribunals of Inquiry in Ireland and has acted in a large number of high profile constitutional law matters in Ireland, including in the seminal case of Maguire –v- Ardagh.
In May 2010, Mr. Denis O’Brien sought a formal Legal Opinion from John Rogers SC in relation to the application of the Moriarty Tribunal’s Terms of Reference to the US$50,000 Telenor donation to Fine Gael.
Readers can review the background to this matter and access further detail relating to the Moriarty Tribunal’s lengthy and costly inquiries into this US$50,000 Telenor donation to the Fine Gael party at the relevant section of this site via the link below:
http://www.moriartytribunal.com/us50000_telenor_donation_to_fine_gael/
Mr. Rogers produced his considered formal Legal Opinion on 1 June 2010. The key points in Mr. Roger’s formal Legal Opinion were as follows:
(1). Michael Lowry and Fine Gael could not be “connected persons” as defined under the Ethics in Public Office Act, 1995.
In addressing the specific statutory provision being relied upon by the Moriarty Tribunal to issue findings / opinions in relation to this US$50,000 Telenor donation (Section 2 of the Ethics in Public Office Act, 1995), Mr. Rogers states:
“…it seems clear that what is required is for the trustee of a trust to be connected with an individual, or the children of an individual or the body corporate controlled by an individual in circumstances where the individual, or his children or his body corporate is a beneficiary of the trust. This plainly does not apply in this instance. Mr. Lowry and Fine Gael could not be connected persons within sub-section (2)(a)(ii).” (emphasis added)
In response to the Moriarty Tribunal’s contention that Michael Lowry and the Fine Gael party are “connected persons” pursuant to this section, Mr. Rogers states conclusively that:
“…as Fine Gael is not a company and does not carry out its operations through the medium of some corporate entity, it is impossible to say Michael Lowry and Fine Gael are connected one with the other for the purposes of this statutory definition…”
(2). The matter of the US$50,000 Telenor donation to Fine Gael does not fall within the Terms of Reference of the Moriarty Tribunal.
In addressing the Terms of Reference as framed by the Oireachtas and which created the the Moriarty Tribunal, Mr. Rogers states:
“….The Terms of Reference gave no clue to it being the intention of the Oireachtas that monies paid to political parties or being in an account which might be a source for such purpose was to be the subject of inquiry by the Tribunal…”
In summarising his considered eight-page Legal Opinion, John Rogers SC stated as follows:
“The Terms of Reference seem clearly to demonstrate that the Oireachtas turned its face against mandating an inquiry into the payment of monies to political parties. The Terms of Reference were sharply focused so as to catch accounts and monies that may have been paid to Charles Haughey and Michael Lowry and monies that may have been in accounts that may have provided a source for such payments to these two politicians. These are the “definite matters of urgent public importance” that the Tribunal was to investigate in order to determine whether sufficient evidence existed in relation to them to warrant proceeding to a full public inquiry in relation to such matters.
In short, the Oireachtas did not mandate an inquiry into payments to Fine Gael whether by Telenor AS or any other entity” (emphasis added).
In summary, the Telenor US$50,000 donation to the Fine Gael party is absolutely none of the Moriarty Tribunal’s business; primarily as it plainly had nothing to do with Mr. Michael Lowry. Accordingly, the matter ought not form the basis of any adverse findings / opinions in the Moriarty Tribunal’s final report as a matter of law; let alone as a matter of basic common sense. All of the evidence presented to the Moriarty Tribunal was that Michael Lowry knew nothing about this legitimate political donation until such time as it was brought to his attention by the Moriarty Tribunal in 2001. Indeed, Mr. Lowry was not even a member of Fine Gael when the monies were passed to the party.
Mr. John Rogers’ legal advices on this issue mirrored the advices given to the Fine Gael party by Mr. James Nugent SC in 1998. These advices were also wholly consistent with previous legal advices given to Telenor and Mr. Denis O’Brien separately; as well as legal advices which were separately provided to the Esat Telecom Group.
In fact, the only party that has sought to maintain that this political donation to the Fine Gael party comes within the Terms of Reference of the Moriarty Tribunal (and that it therefore ought to form the basis for findings / opinions in the Moriarty Tribunal’s final report) is, strangely enough, the Moriarty Tribunal itself.
This unreasonable and irrational approach of the Moriarty Tribunal to this matter ought to be kept in mind when one comes to consider the enormous cost and duration of the Moriarty Tribunal since it was established in September 1997; some 14 years ago. The Terms of Reference of Tribunals such as the Moriarty Tribunal are deliberately framed by the Oireachtas so as to fix the parameters of their inquiries. When a Tribunal itself decides to ignore those fixed parameters set by the Oireachtas through the Terms of Reference, serious cost and time overruns will be the inevitable consequence.
