ANALYSIS:Last-minute evidence to the Moriarty tribunal may prove disastrous for its credibility and undermine the standing of Mr Justice Moriarty, writes COLM KEENA
THE EMERGENCE of Danish consultant Michael Andersen as a likely witness to the Moriarty tribunal’s marathon inquiry into the 1995 mobile phone licence competition has opened up a number of possible “appalling vistas”.
Because of a precedent involving an English solicitor, Christopher Vaughan, who gave evidence in June 2009, it seems possible that the tribunal’s leaked provisional findings on the licence competition, issued in October 2008 after an inquiry that spanned six years, may now be set at naught.
Vaughan gave evidence in relation to the tribunal’s inquiry into land deals in England in the late 1990s and whether they involved businessman Denis O’Brien conveying a benefit to Michael Lowry. Lowry was minister of communications at the time of the licence competition.
Vaughan’s evidence is understood to have led to new provisional findings on the land deals that were worse than the original ones from O’Brien and Lowry’s points of view. The original findings, it was said by the tribunal at the time, were set at naught because Vaughan had not contributed to the evidence that was the basis for them.
It appears to follow that the emergence of Andersen could seriously affect the provisional findings on the licence competition. Furthermore, a statement of Andersen’s submitted to the tribunal last week indicates he is going to give evidence that will directly contradict many of the judge’s negative provisional findings issued in October 2008. Andersen is an international expert in licence competitions, and his evidence would be expected to carry weight.
If Andersen’s evidence is as expected, and is accepted by Mr Justice Moriarty, then a large chunk of the provisional findings on the licence issue may fall away. If it is not accepted, then it could lead to some of the civil servants who gave evidence years ago, being called back to the witness box.
All in all, this is a disaster for the credibility of the tribunal. It is particularly so because of what happened in March in relation to evidence from officials in the Attorney General’s office.
The licence competition was won by O’Brien’s Esat Digifone, which gained the right to conduct exclusive negotiations with the State. The licence was issued to Digifone in 1996.
The 2008 provisional findings from Mr Justice Moriarty contained negative findings concerning the legality of the licence, in one instance to do with changes in the ownership of Digifone that occurred prior to the issuing of the licence. These findings would have been very damaging to the reputation of the State and its Civil Service. The evidence heard in March has not to date led to new provisional findings being issued on the matter. Provisional findings are usually only issued to parties whose reputations are affected, so it appears to be the case that the negative findings on the legality issue have been dropped. Andersen’s evidence may now put paid to most of the negative findings in relation to the licence competition.
It appears that an enormously expensive process may have gone on much longer than it should have, at great expense to the exchequer. It is also beginning to appear that as a result, the parties involved, including the civil servants, may have been subjected to great unfairness.
The inquiry into O’Brien’s connections, if any, with Lowry, began in 2001. The cost will not be known until after the tribunal reports, but it will be many tens of millions of euro. The senior members of the tribunal’s legal team have earned millions from their work over the years, and continue to clock up annual incomes of almost €1 million each. Arguably, the job done has been less than competent.
The chairman now finds himself in a very difficult position. During the March evidence Mr Justice Moriarty accepted two significant errors had been made in relation to the legality issue. One involved a ruling of his that included a statement saying the Attorney General had confirmed the tribunal’s view of legal advice received in 1996 concerning the legality issue. In fact the opposite was the case. How the error came to be made has not yet been explained.
Andersen, in the statement submitted to the tribunal last week, said he formed the impression during private dealings with the tribunal’s legal team some years ago that it was the “strong view” of certain members of the team that Digifone should not have won the competition and that Persona, the second-ranked consortium in the competition, should have been the winner.
This chimes with the statement made at the tribunal in 2003 by Eoghan Fitzsimons, who represents Telenor, one of the shareholders in Digifone. At the time a case where Persona was suing the State was pending in the High Court and Fitzsimons, a former attorney general, said “the same case will be put [in the High Court] as was put here”. The judge objected strongly to the remark but it was supported by counsel for O’Brien, Eoin McGonigal.
McGonigal has in the past raised concerns in relation to the fact that one of the tribunal counsel, Jerry Healy, acted for Persona in the wake of the competition result, about which it felt very aggrieved.
The issue of the tribunal team has also been raised by counsel for the Department of Communications, John O’Donnell, who said during the March hearings that the views of the team were making their way into Mr Justice Moriarty’s findings. The judge did not respond to the remark.
On Marian Finucane’s show on RTÉ radio last Sunday, retired member of the Supreme Court, Catherine McGuinness, said it was difficult to talk about the position the tribunal was in but “all these things coming out do seem to create distinct doubts in your mind”.
She also said, referring to complaints that O’Brien has been making concerning the tribunal for some time now, that “as things move along you think, well he did have a certain amount to complain about.”
Mr Justice Moriarty issued his first report, on payments to the late Charles Haughey, in December 2006. The tribunal’s second and final report will deal with matters concerning Lowry. Even if the bulk of the licence issue is dropped from the final report, it is still likely to contain serious and troubling findings, including findings affecting O’Brien. The question now is how the tribunal can get itself to a point where the report can be issued.
The tribunal was established by the Oireachtas and, in terms of outside bodies, can probably only be brought to an end by the Oireachtas. Whether Mr Justice Moriarty, or some new chairman who might review the evidence heard to date, should write the second and final report, is arguably now an issue, given all that has transpired.
Colm Keena is Public Affairs Correspondent