As bill for taxpayers rises, tribunal seems to have lost the plot

The Moriarty tribunal seems to be writing a detailed history of the mobile phone licence bid rather than focusing on issues of concern, writes Colm Keena

The Moriarty (Payments to Politicians) Tribunal seems to have lost its way and strayed a considerable distance from the sort of inquiry that was intended when it was established. It is spending literally millions of euros of taxpayers' money on an investigation that seems to have no point, with the only people who are obviously benefiting being solicitors and barristers.

The tribunal is spending years investigating a mobile phone licence competition which itself took three months. It is examining the process in public, in minute detail, though it is not clear to what end.

The tribunal was set up in 1997 in the wake of the McCracken (Dunnes Payments) tribunal. It was asked, among a number of other matters, to look for payments to Mr Michael Lowry and Mr Charles Haughey and any decisions those men might have made while in government which benefited persons who had given them money.

After a number of productive years discovering payments to Mr Haughey and hearing evidence from the former Taoiseach, the tribunal seemed to run out of steam. Then in 2001, following on from newspaper revelations, it began to investigate possible payments from Mr Denis O'Brien to Mr Lowry.

A number of matters of concern were quickly revealed, matters to do with payments in the late 1990s which appeared to link Mr O'Brien to Mr Lowry.

It is at this point that the tribunal seems to have lost its way. The prospect that money had been paid by Mr O'Brien to Mr Lowry meant that the tribunal would have to look at whether Mr Lowry had done anything in return.

This was particularly so because a financial contribution had gone from Digifone to Fine Gael at around the time that Mr Lowry announced that Digifone would be getting a mobile phone licence, and because Mr O'Brien had told a colleague he had given money to Mr Lowry, a statement which was investigated by the Digifone board.

The board found nothing. Its inquiries did not discover that Mr O'Brien had at about that time sent money to a bank account in the Isle of Man, from which money went to a businessman-acquaintance of Mr O'Brien and from him to Mr Lowry.

The tribunal has developed a particular way of working. It decides to investigate a particular matter, does so in private and then decides if any of the matters discovered are relevant to the tribunal's terms of reference and if they should be introduced in public evidence. The chairman, Mr Justice Moriarty, will make his final decisions based on evidence heard in public.

People interviewed in private by the tribunal and who are to later give evidence prepare what are called statements of intended evidence. They then go into the witness box, confirm that they agree with the statements of intended evidence as they are read out, and answer questions. Issues of interest are then explored in public question-and-answer sessions.

Mr Lowry was minister for transport, energy and communications in 1995 when Esat Digifone won the competition for the State's second mobile phone licence. Mr O'Brien's Esat Telecom owned 40 per cent of Digifone. Esat Telecom was at the time involved in the "fixed line" telephone business, in competition with Telecom Éireann.

Mr Lowry was directly involved in resolving disputes between Esat Telecom and Telecom Éireann, but was in theory locked out of the process of selecting the winner of the State's second mobile phone licence competition.

The payments involving Mr O'Brien and Mr Lowry were discovered in 2001. Evidence was heard between June and October and the tribunal then went into private session to examine the licence competition. This was a huge exercise and took the best part of a year.

In October 2002 the tribunal decided to begin public hearings into the licence competition. It started by reading out an extremely lengthy statement outlining what had been discovered in relation to the licence competition and sketching the evidence that was to be heard.

At the time it didn't seem as if much of relevance had been discovered and, as the evidence has been heard, this impression has been strengthened.

A key issue was the examination of the civil servants who actually decided that Digifone was the winner of the competition. Nothing emerged during their evidence that indicated Mr Lowry interfered in order to assist Digifone. Yet despite this, the tribunal continued and is continuing to call new witnesses who are being asked about aspects of the competition process.

At the moment, the tribunal is hearing evidence from Mr Owen O'Connell, a managing partner with William Fry solicitors who acted for Mr O'Brien's companies. He may be in the box for eight days.

Mr O'Connell's evidence mostly entails putting into the public domain a myriad of previously confidential details of events which occurred within the Digifone consortium while it was bidding for the licence. Mostly, the evidence concerns commercial and legal disputes and strategies, items that have nothing directly to do with Mr Lowry or the selection of the Digifone bid as the winner.

The tribunal seems to be writing the history of the bid for the mobile phone licence in exhaustive detail and at great public expense rather than focusing in public evidence on matters relevant to issues of concern. The point of the exercise is not clear.

Of course knowing everything that happened helps to spot if there was any corruption, though that does not explain why all this has to happen in public session.

Overall, it seems that once the tribunal has started to hear evidence in relation to the competition, it finds itself unable to stop.

Most days there are approximately 20 legal people in the tribunal hall, representing the tribunal, Mr Lowry's former department, Mr O'Brien, and Telenor, the Norwegian company that was Mr O'Brien's partner in Digifone.

Some of the most respected and best-paid barristers in the State are involved and all will eventually be paid by the taxpayer. (Mr O'Brien has said his legal costs to date are €3 million.)

The only person not represented daily at the tribunal is Mr Lowry, the supposed focus of the inquiry. This is because of a number of factors, including his previous legal team having to stay out of the module for conflict reasons.

At bottom, however, it is because Mr Lowry can't afford to pay out the way Mr O'Brien and Telenor can. (They will be reimbursed when the tribunal completes its work.) The whole set-up seems odd and self-contradictory. Why the tribunal does not simply complete its inquiries in private and only return to public session if it finds something of real concern is not clear.

It is unlikely that any politician is going to suggest curtailing - or shooting - the tribunal in order to protect the public purse and so the public is looking at the possibility of the public hearings continuing for another year, if not longer, at great expense, and to no obvious purpose.

It is even possible that once it has completed its inquiry into the licence competition, it will discover something that will cause it to hear public evidence concerning Esat Telecom's battle with Telecom Éireann.

RTÉ and the Examiner have stopped sending reporters to the tribunal on a daily basis. Other media outlets abandoned it ages ago. The Irish Times and the Irish Independent still send reporters. However, unless something dramatic happens it is possible that by next year the only person who will be kept informed about public sittings of the Moriarty tribunal will be the Paymaster General.