Moriarty has made a mistake – a mistake that must make the awarding of the phone licence legal and safe, writes SARAH CAREY
MORIARTY WILL take it on the chin will he? That’s great. I suppose Denis O’Brien, Dermot Desmond, Richard Nesbitt, Denis McFadden and John Gormley, not to mention the taxpayer, who have all paid a high price for the error Moriarty now accepts he made, are expected to take it on the chin too. So much for O’Brien’s much maligned “spin”. The “spin” just turned out to be fact.
Because I worked for Esat Digifone during the bid and was required to give evidence to the tribunal about a golf tournament and a cheque I’m generally accused of bias. In response I’ve always made the point that those who refused to accept the sworn evidence of civil servants and respected barristers were the ones with the bias issues.
For the uninitiated, here’s a recap of what we learned this week at the Moriarty tribunal. Jerry Healy told Richard Nesbitt in 2002 that he thought Nesbitt’s opinion on the issuing of the licence was “shite”. Nesbitt had been retained by the State in 1995 and 1996 to advise it on legal issues concerning the award of the second mobile phone licence. Jerry Healy was retained by the Moriarty tribunal to investigate the awarding of that licence.
Nesbitt advised the State in April and May 1996 that it was safe to award the licence even though the make-up of the Esat Digifone consortium had changed between the announcement that Esat had won the competition in October 1995 and the actual awarding of the licence in May 1996. This advice is called the “Nesbitt opinion”.
At precisely the same time, Jerry Healy was advising his then client, Persona, on the same matter. Persona came second in the competition and complained to the European Commission that the licence should not have been awarded because the ownership had changed. That complaint was turned down. I wonder what Healy said when he heard? Shite?
This ownership issue has turned out to be terribly important. Apparently (“apparently” because the findings are supposed to be secret) Moriarty has found that because Dermot Desmond’s company, IIU, took a 20 per cent stake in Esat Digifone in April 1996, the licence was issued illegally.
There are a few problems with this finding.
First, we’ve now heard sworn evidence from staff at the Attorney General’s office that directly contradicts that finding. Their evidence is that Nesbitt’s opinion, which they endorsed and defended, was that this change of ownership did not affect the legality of the licence. The tribunal also heard that the then attorney general Dermot Gleeson approved of and adopted this opinion.
Second, it was also revealed that tribunal counsel Jerry Healy and John Coughlan were told at least four times at a private meeting of the tribunal in October 2002 that the State’s view was that this Nesbitt opinion dealt satisfactorily with the ownership issue.
The opinion itself, the correspondence about it and the meeting were all kept secret until recently.
Third, we heard that prior to the lifting of privilege on this famous Nesbitt opinion, the tribunal seriously misled the public about the State’s view of that opinion.
In February 2008, Moriarty issued a ruling in which he stated that he had received a letter from an attorney general – though we don’t know which one – stating that the Nesbitt opinion did not cover the ownership issue. In response, the Attorney General’s office wrote to Justice Moriarty on March 7th, March 12th, April 21st, April 29th, June 17th and July 1st, 2008, and made further submissions in September 2008 asking when this supposed letter was sent because they had no record of it.
Yesterday, Moriarty admitted that he had made two mistakes. He agreed that his February 2008 ruling was wrong and he acknowledged that the “belated production” of the documents about the 2002 private evidence to the tribunal was an error.
Expensive mistakes, your honour.
This whole episode raises serious questions. How on earth did Moriarty rule in February 2008 that the attorney general said something which he never, ever said? Why was the record of the 2002 meeting concealed? Why did Moriarty resist calling as witnesses the staff from the AG’s office who were desperate to reveal what they told the tribunal in that meeting?
Why didn’t Moriarty accept in 2002 what he accepts now – that the attorney general stood over Nesbitt’s opinion? Because if he had, there would have been no need for public hearings into this issue at all – hearings that have cost us millions of euro. As a matter of fact, perhaps Moriarty should clarify if Healy and Coughlan even told him about the meeting?
When Denis O’Brien complained about concealment last week he was written off as being paranoid. Doesn’t this prove that they are all out to get him?
But there is one final issue. Healy, Coughlan and Justice Moriarty himself may well believe that Nesbitt’s opinion is indeed “shite”. But that’s not the point. The point is that the highest law officers of the State believed then, and continue to believe, that the opinion, and therefore the licence, is sound. That is the evidence and since Moriarty says he will base his findings on the evidence then he must find that on this point the licence is safe.
Unless, of course, he’s talking shite.