Moriarty tribunal is protracted, complicated and costly. The public now deserves clarity, not rumour.
The Moriarty Tribunal into payments to Charles Haughey and Michael Lowry, which will cost around €100m, has dragged on for twelve years and may still not be close to conclusion. It issued a report on the Haughey module in late 2006 and reached preliminary conclusions on the Lowry module late last year. Mr Justice Moriarty was quoted recently as saying that recent hearings could give rise to revised provisional findings and until submissions were received on those findings, it would not be possible to say whether or not there would be further public hearings. Even when revised provisional findings are made it may drag on for several more years if the state or anyone else injuncts publication of the final report, as seems likely given the alleged outrage in official circles at the reported preliminary findings.
In December 2008 Labour leader Eamon Gilmore told the Dail that “it has been suggested to me that one Government department – the Department of Communications – had issued an initial statement on Friday night that the Government had rejected the findings of the tribunal. Now that would be a quite remarkable statement to have been issued particularly since the tribunal has not yet reported to the House”, he said. The Sunday Times reported ”A former senior civil servant said: ‘This has been all around town for the last 48 hours. The allegations in the report are extremely serious’”. Eamon Gilmore noted “rumours all over the place” about what the document contained and wondered whether the Government collectively, or individually, “have seen draft sections of the report”, though he was informed by the Tanaiste the government had neither seen nor discussed it and that the report was an issue for the Oireachtas and not for the Government. Nevertheless it has recently been reported that the Government has prepared legal proceedings after considering the findings. In short, since December there has been little but confusion and rumour about the preliminary findings
Although the Irish Times and the Sunday Business Post were both warned they would be injuncted if they reported that the Irish government is in dispute with the inquiry about its conclusions, the preliminary findings have been synopsised in the Sunday Times of 30 November 2008 and in greater detail by the Mail on Sunday of 28 July 2009. Indeed the tribunal itself has somewhat enigmatically referred to its own “adverse findings”.
There is a taxpayer interest in knowing all of the tribunal’s deliberations. There is a freedom of expression imperative in ensuring publication is not limited to a knowing few, and salacious gossip.
Village embraces these imperatives for the following reasons:
1) It is important the public understand the whole of the process of this important, expensive and controversial public tribunal. The public has heard the allegations, it will hear the conclusions. It should hear the preliminary conclusions so it can understand the arcane ongoing hearings.
2) There is no damage to the interests of those about whom preliminary conclusions are made since the preliminary conclusions as well as the allegations made in the tribunal that ground them are already in the public domain, being the subject of much political gossip, of articles in the Sunday Times and Mail on Sunday and of discussion in the tribunal itself
3) The law should not be cast into disrepute by being perceived to act in vain.
Though preliminary, the findings must now enter the public domain in the normal way.
The Moriarty Preliminary Findings
The Cabinet has heard preliminary findings from the Moriarty tribunal. These include:
• that Michael Lowry intervened in the bidding process several times to help Denis O’Brien’s Esat Consortium and that civil servants who were “in thrall to him” permitted him to do this, permitting departures from the agreed evaluation methodology and agreed procedures;
• that civil servants helped Michael Lowry to cover up his interventions;
• that senior civil servants may have permitted changes to the agreed procedures to the benefit of Mr O’Brien’s consortium;
• that civil servants may have concealed the configuration of the winning consortium and the involvement of Dermot Desmond’s IIU along with Esat. Changing the composition of the consortium is said to have been against the rules;
• that the weighting of the bid process to favour Denis O’Brien was concealed from Mr Lowry’s successor, Alan Dukes;
• That changes to Denis O’Brien’s consortium to introduce Dermot Desmond’s IIU company in breach of the rules were concealed from Mr Lowry’s successor Alan Dukes.
Most of the preliminary findings are critical of the civil service rather than Mr Lowry and Mr O’ Brien. They don’t say whether Denis O’Brien made payments to Michael Lowry.
Adverse findings may have been made against John Loughrey, Secretary General of the Department of Communications at the time and other senior civil servants including Fintan Towey and Martin Brennan. They are all vigorously contesting the findings.
This is all according to a report in the Mail on Sunday of 28 July 2009. Village does not assert the truth of the preliminary findings referred to in the report or of the report itself. It notes that the findings are in any event preliminary and liable to be overturned as part of a process that is now underway, in unexpected additional tribunal hearings, of allowing those against whom adverse preliminary findings have been made, to challenge the findings.
Background to Lowry module
The Moriarty Tribunal or theTribunal of Inquiry into certain Payments to Politicians and Related Matters is a Public inquiry established in 1997 into the financial affairs of politicians Charles Haughey and Michael Lowry. The well-respected Blackrock College-educated High Court judge, Michael Moriarty, presides at it. It has already revealed significant tax evasion by these and other politicians and businessmen leading to recovery by the Revenue Commissioners of millions of euros in settlements.
In the Haughey module the tribunal confirmed that Charles Haughey had used Ansbacher accounts and that he was paid more than IR£8 million between 1979 and 1986 from various benefactors and businessmen, including £1.3 million from the Dunnes Stores supermarket tycoon Ben Dunne alone. The tribunal described these payments as “unethical”. He had stolen a “sizeable proportion” of the medical fund for his colleague the late Tanaiste Brian Lenihan Snr, contrary to his evidence he did know about his personal finances, and he accepted cash in return for favours throughout his political career including for arranging a hugely important tax meeting for Dunnes Stores and for arranging passports for a wealthy Arab businessman.. The report was perceived to be somewhat less decisive than the well-regarded Flood Report on planning corruption of around the same time.
In 1996 Denis O Brien’s Esat Digifone beat five international bidders including Nokia, the Motorola-backed Persona group and a Tony O’Reilly-led consortium to gain the first private mobile phone licence – for €18m. It was sold to British Telecom in 1999 for €2.4 bn. Michael Lowry was the minister who, in 1995 and 1996, oversaw the award.
Serious allegations were made by disappointed under-bidders for the mobile-phone licence during Moriarty’s 10-year inquiry at Dublin Castle. The state is already facing a civil suit by one of the failed consortiums, Persona, led by businessman Tony Boyle.
By the time the licence was to be awarded, Dermot Desmond’s IIU Nominees Ltd had replaced institutional shareholders mentioned in the Esat bid. The tribunal heard that civil servant Fintan Towey sought advice from Richard Law Nesbitt on this matter. Civil servants believe the advice from the Attorney General implied that there was “no legal rule of any kind” and Denis O’Brien maintains that the opinion “rubbishes” the claim that there was political interference in the awarding of the licence and shows as “fundamentally flawed” the provisional conclusions. Judge Moriarty said he did not wish to call a barrister to give evidence about written advice he had furnished. He said he would do so if he felt justice required. Following release of the legally-privileged letter the tribunal agreed to hear evidence from civil servants including John Loughrey, Fintan Towey and Martin Brennan.
Hearings to do with the ownership of Doncaster Rovers Football Club Ltd, a UK company Mr O’Brien told the tribunal he owned, were delayed because of High Court and Supreme Court challenges by Mr O’Brien, but eventually went ahead in June 2007.
And now the tribunal is considering responses to the adverse findings and in particular to Mr Law Nesbitt’s legal opinion.