ANALYSIS:YESTERDAY'S SEVEN-page letter from Mr Justice Michael Moriarty to the Clerk of the Dáil, Kieran Coughlan, represents the second set of remarks from the tribunal chairman on his work in recent times, writes COLM KEENA
On April 23th, in an unprecedented development, the chairman issued a three-paragraph statement in response to what he called “a sustained attack on the work of the tribunal”.
He asserted the integrity of the tribunal and said no criticism would interfere with his duty to discharge his remit with impartiality.
Yesterday, following discussion of the tribunal in the Dáil on May 11th last, he set out some of the reasons for the length of time his tribunal has taken. These reasons, he said, included four sets of legal proceedings brought against it.
There was also private investigative work that did not lead to public hearings, and other matters that he would comment on in his final report. This no doubt is a reference to views he may hold that some parties sought to mislead the tribunal. This is a fraught area since a Supreme Court ruling last month concerning the Mahon tribunal.
He said the report on the issuing of the State’s second mobile phone licence to Denis O’Brien’s Esat Digifone in 1996, was 80 per cent complete up to April 14th last. Work on money trail issues concerning former communications minister, Michael Lowry, was 90 per cent completed. In all he was envisaging a report with 70 chapters.
What changed on April 14th was that the tribunal learned, from O’Brien’s lawyers, that a Danish consultant, Michael Andersen, a key witness for the licence inquiry, might now be available to give evidence. Mr Justice Moriarty said the tribunal is endeavouring to arrange for Andersen to give evidence “in early course”, but gave no details.
The tribunal’s costs to date, including unknown third-party costs, may well be in excess of €200 million. While nothing is happening in public, the tribunal and lawyers acting for various third parties are in regular correspondence arguing over a range of matters to do with the tribunal’s confidential provisional findings, issued in November 2008. Behind the scenes, substantial additional costs are being built up.
The chairman finds himself in a very difficult position. The tribunal’s credibility suffered a blow when he had to withdraw significant adverse findings concerning the licence issue. The duration of the tribunal has become a political topic, and the possibility of Andersen giving evidence has raised the possibility that the licence chapters may be revised again, with further adverse findings being dropped.
The tribunal itself is under scrutiny, and the pressure is showing. Rumours and reports of threatened judicial review proceedings abound, and it is not hysterical to wonder if any report will ever emerge.
The confidential preliminary findings were devastating for many parties, not least the State. They are now less so, but they remain very damaging. Many of those involved with and observing the tribunal accept there is very substantial material to support the provisional findings on the “money trail” aspect of the tribunal’s work. The licence issue is more complicated.
This is what has led Mr Justice Moriarty to float the idea that he might issue a money trail report first, and his licence report later. There would be a very strong reaction to any such move, on the grounds of unfairness. Such a move would create suspicions while delaying the answering of those suspicions until later. And as is very clear, later can be a very long time when you are talking about tribunals.
On the other hand, trying to land the fish he has on the end of his line is not a straightforward matter – €200 million plus for a broken fishing line swinging in the wind, would be some end to Ireland’s era of tribunals.