Hidden hand of lobbyists comes to the fore in Red Flag lawsuit
O'Brien legal action shows the influence that can be exerted over politicians
Legislation aimed at bringing transparency to the somewhat murky world of lobbying was introduced three years ago in a belated response to controversies over planning corruption and payments to politicians.
Since September 2015, entities lobbying Government ministers, departments, public bodies or designated public officials must disclose this activity. Disclosures must be made if the lobbying relates to changing public policy, the preparation or amendment of any law, or the awarding of grants, loans, contracts or licences involving public funds.
The definition of a designated public official is quite wide and includes ordinary members of the Oireachtas, such as members of the Opposition.
Who has been contacted, the nature of the contact and the intensity of the communications and activity are all things which must be submitted to the lobbying register. This has proven to be a valuable tool in terms of improving transparency, but it doesn't tell the whole story of how the political system can be influenced.
Over the past two weeks court proceedings taken by media and telecoms tycoon Denis O'Brien against a Dublin public relations firm, Red Flag Consulting, have provided a glimpse of what can go on behind the scenes.
In particular, text messages exchanged by former Fianna Fáil TD Colm Keaveney and Red Flag chief executive Karl Brophy paint a fascinating and somewhat troubling picture of how public perceptions can be manipulated by the hidden hand of lobbyists.
The texts, contained in a 15-page exhibit handed in to the High Court, reveal how Mr Brophy suggested and refined potential questions to be asked in parliament. His firm also suggested changes to a draft Dáil speech but its version was not delivered.
Mr O'Brien alleges this activity was part of a conspiracy to damage his interests and has been on a mission to find out what client Red Flag was acting on behalf of. The firm denied engaging in a conspiracy or defaming Mr O'Brien.
Mr Keaveney was a critic of Mr O'Brien and supported calls for an independent inquiry into the sale of Siteserv to Millington, one of Mr O'Brien's companies, in a deal that saw IBRC accept the Millington offer even though it was lower than a figure proposed by a French company, Altrad.
Siteserv's board argued there was no certainty the Altrad approach would result in a transaction.
Mr Keaveney has alleged Mr Brophy made contact with him in April 2015 after he spoke about the Siteserv controversy on RTÉ's 'Late Debate' radio show. Mr Brophy disputes this and says Mr Keaveney initiated the contact.
Mr Keaveney claims that between April and June of that year Mr Brophy urged him to adopt a hard line against Mr O'Brien.
"It is clear from any assessment of the communications as exhibited that Mr Brophy sought to play a very active role in trying to influence me as regards my position in relation to the plaintiff (Mr O'Brien) and as regards the contents of my contributions to the Dáil debates in relation to the plaintiff and/or Siteserv," Mr Keaveney said in an affidavit.
According to the one text that April, Mr Brophy gave Mr Keaveney information about the purchase by Mr O'Brien of his own loans from the liquidator of IBRC. "Worth a PQ and questions," he texted to Mr Keaveney. PQ is the commonly used shorthand for a parliamentary question.
Later that month he texted that he would "write up a very short briefing note of lines of questions for the Dáil" in relation to the Siteserv sale.
It is clear Mr Keaveney went along with things for a time. The following month he texted Mr Brophy asking him to "recast" a PQ for him. Mr Brophy replied: "Will do."
In a later text Mr Keaveney wrote: "Tidy the PQ pls!"
Mr Brophy responded he was abroad but would do so on his return the following day. He later texted Mr Keaveney saying: "Sent you that and another bonus one earlier. Well worth asking the second one."
In one intriguing text exchange in April 2015, Mr Brophy asked Mr Keaveney to set up a meeting between Neil Ryan, a Department of Finance assistant secretary on the IBRC management team, and Fianna Fáil leader Micheál Martin.
"Don't expose him or even mention who has sent this," the text read.
"He's keen to meet MM. Apparently became increasingly agitated as the week wore on but has no way of speaking out and, I gather is worried about what will happen his reputation. He's a very good banker and he will know EVERYTHING."
Mr Ryan admits meeting Mr Martin, but insists the meeting did not concern Mr O'Brien or any of his companies, including Siteserv.
The pressure brought to bear by Mr Keaveney and other politicians led to the Government establishing a commission of investigation into the Siteserv deal and others where IBRC sustained a capital loss above €10m.
It is not clear from the text messages whether Mr Brophy was acting on his own initiative or at the prompting of a client.
Last December, Mr Keaveney swore an affidavit in which he stated his belief that Red Flag's client was entrepreneur Declan Ganley.
This has been denied by Mr Ganley, but the denial did not stop the High Court from joining him as a co-defendant in Mr O'Brien's lawsuit against Red Flag and a number of its executives.