Yesterday's ruling may end the Mahon tribunal's work much earlier than expected, writes Colm Keena
The unanimous decision of the Supreme Court yesterday is a major blow to the work of the Mahon (formerly Flood) tribunal.
The ruling would seem to mean that a huge amount of work that has been conducted in private into many allegations will not now lead to public hearings.
A decision in 2005 to proceed to public hearings in the matter of a payment of £30,000 to Ray Burke by the Fitzwilton group subsidiary Rennicks in 1989 provoked Fitzwilton to take the case which succeeded in the Supreme Court yesterday.
The module was set to be of great political interest as it would include examination of a massive investment by Independent News & Media, and others, in a television transmission system venture (MMDS), the licences for which were issued in 1989 when Mr Burke was minister for communications.
Mr Burke also subsequently issued a letter to the venture which contained certain assurances. In 1998, the then Fine Gael spokesman on justice, Jim Higgins, said in the Dáil that these assurances involved a departure from official advice.
The module would have examined whether there was any link between these matters and a cheque for £30,000 made out to cash and given to Mr Burke in 1989 by Rennicks, a subsidiary of the Fitzwilton group. The reason for examining any possible link between the two matters was the prominent role of Sir Anthony O'Reilly in both the Independent group and Fitzwilton.
LK Shields solicitors, which acted for Fitzwilton in the Supreme Court case, issued a press release yesterday in which it said Sir Anthony was not aware that the payment, intended for Fianna Fáil, "had been made via Mr Burke" until 10 years after the payment was made.
However, the Fitzwilton module may not be the only matter affected by yesterday's ruling.
In 2004 the tribunal reported to the Oireachtas that it might take up to 2015 for it to complete all the matters it had on its to-do list. The Oireachtas, in response, said the tribunal should proceed with its work on a number of specified matters.
It also said that by May 1st, 2005, the tribunal should identify the other matters on which it would be proceeding to public hearing, record those matters, and "duly notify" the parties concerned. On April 28th, 2005, the tribunal drafted such a list, with"Fitzwilton-MMDS-Payment to Ray Burke by Rennicks" being one of the matters listed.
However, the record of the decision made by the tribunal members said it "may decide to continue its inquiries and/or to proceed to public hearing in respect of one or more issues which are currently part of a matter designated and listed herein".
Ms Justice Denham in her judgment yesterday said this wording indicated the tribunal "reserved" its decision when it had been instructed by the Oireachtas to "make" the decision. "I am satisfied that the tribunal did not make a decision, it deferred its decision."
The list drafted by the tribunal members in April 2005 has not been made public. According to one source it contains 47 matters.
It is not clear how many discreet modules might be involved as many of the 47 matters may be interlinked.
However, if all the items on the list now fall, it would seem to follow that a number of years have been knocked off the future lifetime of the tribunal.