AMID the torrent of claim, counterclaim, accusation and denial generated by the Moriarty Tribunal, one fact emerges about which there is no dispute. At a cabinet meeting on March 2, 1995, the then Government took a decision on how the mobile phone licence was to be granted.
The decision was that the process should be conducted by the Department of Communications. The department would make a recommendation to the Government on who should get the licence. However, the final decision on the winner was reserved to the Government. That decision was ignored. The Cabinet never got to consider the matter. When one considers that this was one of the most important decisions — if not the most important — to be made by that Government, that is quite extraordinary. The two central questions are how that happened and why.
The how part is easy. Michael Lowry rang the then Taoiseach John Bruton and told him he wished to see himself and the other leaders of the coalition parties that made up the government, Dick Spring and Proinsias de Rossa. They met on the same day at 4pm in the afternoon. At that meeting, Mr Lowry persuaded the three party leaders and Ruairi Quinn, who was also present, that the decision on the licence had to be announced that very evening even though the Cabinet was meeting the next day and could have dealt with the matter then.
Apparently the party leaders agreed to this extraordinary request because Mr Lowry informed them that he was afraid the information might leak before the cabinet meeting. But it was late afternoon and the cabinet meeting was due to take place the following day. Therefore, if there was a leak either that night or the following morning, it would have been only hours before the final cabinet decision.
What exactly was the problem with this? No commercial or other damage could have been done. It was a decision of monumental importance — as I have said, probably the most important that Government was to take — and yet the agreed procedure for taking the decision was ignored on the flimsiest possible excuse.
Did nobody smell a rat? Did the party leaders question Mr Lowry about this matter? Did the party leaders ask Mr Lowry precisely what the difficulty would have been if there had been a leak? Was this discussed at all at the cabinet meeting the following day, which merely “noted” the decision.
If so, did Mr Lowry expand on why he thought a last-minute leak would be so detrimental? For a government to allow itself to be so easily by-passed on such an important matter, literally without a whimper, is at best disgracefully cavalier and at worst reckless. Enda Kenny has repeatedly claimed that the report exonerated those who sat around the cabinet table in 1995. Really? All the report said was that cabinet members were unaware of the events, which preceded the issue of the licence. That hardly excuses their failure to insist that the proper procedure be followed for the granting of one of the most lucrative contracts in the history of the State
The position is that the gardai now have to launch a new investigation from scratch. Gardai will have to re-examine the documentation, question all the witnesses again, etc, and then decide if there is sufficient evidence to refer the matter to the DPP who will then take a decision on whether a criminal prosecution is warranted.
I have no wish to pre-judge what that decision will ultimately be, but I do have an opinion. The standard of proof in criminal cases is “beyond any reasonable doubt”. In my opinion, what has been unearthed by the Moriarty Tribunal doesn’t meet the required standard of proof. Whether one chooses to agree with the conclusion of Mr Justice Michael Moriarty or otherwise, there is, in my opinion, a reasonable doubt. Therefore, in my opinion, and I stress it is only my own opinion, the possibility of a successful criminal prosecution is at best slim.
It is possible that gardai may uncover something else in the course of their investigation. But, 15 years later, what are the chances of this?
As Shane Coleman pointed out in these pages last Sunday, the original faith, which we invested in tribunals, has proved to be somewhat misplaced. The decision of the Supreme Court in the Flood Tribunal case did a lot of damage to the reputation of this form of inquiry. The “not insignificant” errors, which Mr Justice Moriarty himself admitted making last April, is worrying. From my own reading of the report, I was unhappy with the way Michael Andersen’s evidence was treated.
In the Flood Tribunal, Mr Justice Adrian Hardiman pointed out that there are fundamental difficulties about how tribunals operate. It is worth quoting again what Mr Justice Hardiman said: “The enquiry is inquisitorial in character and often takes place in a blaze of publicity. Very damaging allegations may be made against persons who may have little opportunity to defend themselves and against whom legal charges are preferred . . . An inquisitorial public enquiry is not always easily controllable and its evils would be grave if its use was not infrequent.”
Coming from such an authority, this is serious criticism indeed. The judge went on to point out that a tribunal has a natural tendency to view the witnesses who make the allegations on which the tribunal inquiry is based through rose-tinted spectacles and tends to ignore matters which raise doubts about their credibility.
This is not to say that we should treat the Moriarty Tribunal report lightly. Nobody can doubt that these findings are serious. Perhaps the real value of the tribunal lies in the recommendations it makes to ensure, that in future, in matters like this, everything will be done properly. It is vitally important that the Government implements those recommendations without delay and I welcome their promise to do so.