ANALYSIS:It is hard to see how report can now say licence given despite legal concerns, writes COLM KEENA
THE EVIDENCE heard this week and last week is a blow to the Moriarty tribunal’s extraordinarily long inquiry into the 1996 award of the State’s second mobile phone licence.
The hearings have been directed at an aspect of the inquiry that has been causing great concern to the Civil Service and the State. The licence award to Denis O’Brien’s Esat Digifone consortium occurred at a time when Dermot Desmond’s IIU Ltd had recently become a minority shareholder. Desmond had not been mentioned in the bid for the licence. The issue being explored by the tribunal is whether the State at the time adequately examined whether the licence should be issued to Esat, given the ownership change.
It has always been accepted that officials in the Department of Transport, Energy and Communications sought advice from the office of the Attorney General on the matter. The AG’s office in turn sought advice from Richard Nesbitt SC. The issue that has arisen is whether Nesbitt’s advice actually addressed the issue.
It is a crucial matter, because if the tribunal finds that Nesbitt’s advice didn’t address the issue, then the question that arises is: why the licence was issued? Did it have anything to do with the then minister, Michael Lowry?
Confidential provisional findings issued by the tribunal chairman, Mr Justice Moriarty, in October 2008, covered the matter. The findings were treated so seriously that the Cabinet decided to lift legal privilege that had up to then been maintained on the Nesbitt opinion, despite the fact that the State is being sued by two failed bidders for the licence.
The State, and others, then insisted that the tribunal take the unusual step of calling Nesbitt. In the witness box Nesbitt said his written advice covered the ownership issue. He said he also gave oral advice, again to the effect that the ownership issue was not a barrier to issuing the licence. His evidence was challenged by tribunal counsel, and was not accepted by the tribunal chairman in subsequent confidential provisional findings.
After this, the State, and others, pressed that officials from the Attorney General’s office be called. Again the tribunal resisted these calls, prompting a number of parties to threaten to seek judicial reviews. The tribunal eventually acceded and two officials have now given evidence that the Nesbitt opinion was seen by them and their office, at the time, to cover the ownership issue. They have also confirmed Nesbitt’s evidence on giving oral advice.
Moriarty has not said he will be altering his provisional findings, but he has made a number of comments that appear to point in that direction. The unchallenged evidence heard this week and last week was to the effect that Nesbitt, and therefore the Attorney General’s office, approved the licence.
It is difficult to see how a final report could now say the licence was issued despite concerns about its legality. Yet the tribunal was apparently about to make such a finding, until pressurised into hearing the officials’ evidence.
And so, serious concerns have been raised about the tribunal itself. Other serious findings about possible financial links between Denis O’Brien and Michael Lowry, as well as troubling matters to do with O’Brien and his licence bid, remain on track for the final report. So, too, do troubling findings for the State.
There is evidence to support these likely findings. The evidence on the licence issues is more complex than the evidence behind the “money trail” findings, and so relies more on the credibility of the tribunal. No one doubts the bona fides of the chairman, but his tribunal’s credibility has undoubtedly suffered a blow.