INSIDE POLITICS:There is a growing political consensus that the case for an early wrap-up of the tribunal is now overwhelming
THE SUGGESTION by the chairman of the Moriarty tribunal that his final report could be broken into two parts, with one coming soon and the other later, has gone down like a lead balloon with politicians of all parties. There is growing frustration and even anger in Leinster House about the huge cost of the tribunal and the inordinate length of time it has been sitting. This mood has been exacerbated by the emergence of questions about the way it has conducted its business.
The tribunal’s inquiry into the allocation of the second mobile phone licence to Denis O’Brien has run into serious problems, mostly of its own making, and there is a distinct possibility that it may never be able to come to any clear conclusion on the issue.
One thing that really rankles in these straitened times is the way in which the senior members of the tribunal legal team refused to hand back a portion of the excessive fees of €2,500 a day that was mistakenly paid to them as a result of a clerical error.
The three senior counsel on the tribunal team are being paid almost €1 million a year and the taxpayer has had to fork out more than €40 million to date. The State will probably be liable for another €200 million or so if it is stuck with the legal bills for the various third parties who have appeared before it over the past 13 years.
It has emerged in the past week that the tribunal has had to drop preliminary adverse findings affecting businessman Dermot Desmond because it was clearly shown that they had no basis in fact. Adverse findings on leading figures such as O’Brien and Michael Lowry as well as a number of senior civil servants have now been thrown into doubt.
Mr Justice Michael Moriarty wants to go ahead with the section of the report dealing with the “money trail” involving O’Brien and Lowry while leaving the section on the allocation of the mobile phone licence for another day. On the face of it this approach appears to be unacceptable and unfair. It would allow the tribunal to continue indefinitely, regardless of cost or the prospect of reaching firm conclusions, while deferring indefinitely a decision on what to do about other more dubious conclusions.
Any attempt by the tribunal to take such a course of action would almost inevitably end up in the courts and that would only serve to drag out its existence for an unquantifiable period. At this stage patience is running out and political leaders want the tribunal to finish its business as quickly as possible.
Fine Gael leader Enda Kenny and Labour leader Eamon Gilmore stated this position in diplomatic language and while Taoiseach Brian Cowen has kept his views to himself he did not disagree with the sentiments they expressed. Kenny has suggested that the political leaders should discuss the issue and that makes a lot of sense. The tribunal was established by the Oireachtas and, while the politicians cannot interfere with its operations, the party leaders surely have the right, after 13 years and tens of millions of taxpayers’ money already spent, to tell the tribunal to wrap it up and publish what it can.
To be fair the tribunal did face legal obstacles and challenges over the years from powerful vested interests. It has forfeited all sympathy, however, by the way in which it tried to ignore evidence given to it in private back in 2002 about legal advice given by the Attorney General’s office to the Department of Communications before the mobile phone licence was issued. That advice in 1996 was to the effect that the involvement of Dermot Desmond in the consortium led by Denis O’Brien did not affect the legality of the bid.
When it finally came to light, the existence of that legal advice invalidated a significant element of the tribunal’s preliminary findings. The Government shares some responsibility for this development as it allowed the State to apply legal privilege to the written opinion provided to the AG’s office by senior counsel Richard Nesbitt. It was only when the confidential preliminary findings in November 2008 threatened the State with the “appalling vista” of 14 or more senior civil servants possibly being accused of colluding in the issuing of a corrupt licence that the Cabinet decided to waive the legal privilege over the document. The fact that the tribunal could even consider such an absurd finding only served to undermine its credibility.
Even after privilege was lifted and Nesbitt gave public evidence about his opinion last year the tribunal refused to believe him. In March of this year two officials from the AG’s office confirmed the accuracy of Nesbitt’s version of events. At that stage the tribunal accepted that it had made a serious mistake.
On top of that came the news that Danish consultant Michael Andersen was willing to give evidence about the events leading up to the issuing of the licence. The tribunal’s dealings with Andersen are ongoing but the evidence he has expressed himself willing to give threatens to blow another hole in the conspiracy theory about the mobile licence.
It is against this background that Moriarty sent his letter to the Oireachtas proposing to break his final report into two sections but it is precisely because of mistakes already made and admitted by the tribunal that politicians have lost all patience with its operations.
While there are obviously a range of vested interests that would be delighted to see the tribunal pushed into wrapping up its business now, the case for an early wrap-up is overwhelming. Oliver Cromwell’s often quoted injunction to the rump parliament in 1653 is pertinent: “You have sat too long for any good you have been doing lately . . . Depart, I say; and let us have done with you. In the name of God, go!”