Nothing of substance appears to be emerging so far in the current module of the Moriarty tribunal, inquiring into the mobile phone licence competition, to justify the €35,000 a day legal fees to wealthy barristers, writes Colm Keena
The public sittings of the Moriarty (payments to politicians) tribunal in Dublin Castle are costing the taxpayer around €35,000 a day in legal fees, and the need for the sittings is not at all clear.
For those who have lost interest, the tribunal is involved in an in-depth public examination of the competition held in 1995 for the State's second mobile phone licence.
The competition was won by Esat Digifone and the tribunal is inquiring into whether Mr Michael Lowry, minister for transport, energy and communications at the time, did anything to queer the pitch to benefit Digifone and Mr Denis O'Brien.
To date there is no indication that the tribunal has found anything of substance to show that the licence competition was interfered with by Mr Lowry.
Despite this, the tribunal has embarked on a process of hearing public evidence in the matter and it is now all but inevitable that the €35,000-a- day bill being clocked up in Dublin Castle will still be growing come the end of this year.
The daily legal fees bill could be an underestimate. Even if it is not, by the end of the year millions of euro will have been given to wealthy barristers at a time when primary schools are being told they will have to wait for basic infrastructure, such as proper toilets.
The tribunal's method of operation is, in the first instance, to look for money being paid to politicians and, in each instance where it finds such payments, to inquire into whether anything was done in return. The competition inquiry is its first venture into this second stage of examining a possible favour done.
In the case of Mr Lowry, the tribunal discovered that a substantial payment was made to Fine Gael in late 1995 by the Digifone consortium. A newspaper report disclosed this payment to the tribunal. Fine Gael had not reported it.
The tribunal has also learned about financial dealings involving properties in England, which involved Mr Lowry and Mr O'Brien's former accountant, Mr Aidan Phelan. Some of the money involved came from a bank account belonging to Mr O'Brien, although he has insisted it was money he owed to Mr Phelan.
The tribunal conducts inquiries in private into particular subjects before deciding if any of the matters uncovered should be heard in public evidence.
In the case of the licence decision, the tribunal conducted a year-long private inquiry, the longest so far. The question is, did it make a correct decision when it decided to proceed to public session. Presumably it could have simply given a summary of its findings and announced its decision not to take the matter any further. After a week-long opening statement from the tribunal and 20 days of evidence from Mr Martin Brennan, the civil servant who chaired the team which selected Digifone as the winner, the main issue which seems to be emerging is the wisdom of the tribunal's decision to hear public evidence.
Over the coming months, evidence will be heard from a range of civil servants, business people, bankers, stockbrokers, solicitors and European Commission officials. All of these people will have the right to legal representation paid for by the State and some will engage the best and most expensive legal professionals in town. The cash bells are ringing.
Of course, it can't be the case that evidence in public can only be heard when a tribunal has already made up its mind that wrongdoing has occurred.
Nevertheless, it seems reasonable it would set out to see if a particular malign scenario can be shown to have occurred or not.
Much interesting information was discovered during the private inquiry. For instance: Mr Lowry meeting Mr O'Brien in a pub for a pint during the competition, in breach of the protocol then in existence; Digifone getting its hands on a confidential European Commission letter; Mr Dermot Desmond becoming part of the Digifone consortium during the period of the licence competition so that the consortium which won the competition was different from the one which made the actual bid.
But all of this is irrelevant unless Mr Lowry did something to help Digifone win. The tribunal may feel it is incumbent on it to investigate the competition in public because of its year-long private inquiry and to be fair to Mr Lowry and Mr O'Brien.
In other words, so that it can be shown that Mr Lowry did nothing wrong.
However, it is questionable whether the public would agree to millions of euros of its money being spent in this way. The Department of Finance might also have a view.
At this stage it is hard to see how the process can be stopped. If something startling does emerge, then the decision to proceed will get retrospective approval.
If nothing emerges, the decision to proceed will be criticised by politicians, the media, and the general public and will add to the debate about whether tribunals are the best way to investigate public controversies.
The inquiry into Mr Lowry and Mr O'Brien was sparked off by a leak to the newspapers, believed by some of those affected to have come from a Fianna Fáil supporter wanting to drag Fine Gael into a tribunal. Up to then most of its time was spent investigating Mr Haughey.
If that is so, then it has presumably worked out better than the person involved ever dreamed it would. The average taxpayer has less reason to be pleased.