Wednesday 17 January 2018

Few winners in this war -- and taxpayer is the really big loser

WHEN he issued his first report in 1996 about the payments received by the former Taoiseach Charles Haughey, High Court Judge Michael Moriarty stopped short of calling the late 'Squire' corrupt.

Instead, the Belfast-born judge said the payments received by Haughey during his political career "devalued the quality of a modern democracy" -- an eloquent understatement of one of the more infamous features of Haughey's reign, a reign which ended in public disgrace.

Yesterday, when he issued the long-awaited final report of his investigation into possible links between businessman Denis O'Brien and Michael Lowry, Judge Moriarty did not actually use the word "corrupt" in relation to O'Brien's dealings with Lowry. But it was a de facto finding of corruption, as reflected in the judge's damning language.

In a mammoth, 2,300-page report, the judge described Lowry's influence on the process that led to the award of the second mobile-phone licence as "insidious and persuasive."

The tribunal compares Lowry to Haughey, saying he engaged in "venal abuse of office" and that the brazen refusal to acknowledge his financial arrangements with O'Brien and businessman Ben Dunne had "cast a further shadow over this country's public life."

The Tipperary poll-topper, now an Independent TD, also stands accused of receiving payments from O'Brien and of lending currency to a "groundless rumour" that if the Persona consortium won the licence it would result in a "nest egg" for a former prominent Fianna Fail politician.

He also stands accused of imparting substantive information to O'Brien to help his consortium secure the licence.

More significantly, Lowry is accused of breaking the hermetic seal surrounding the licence process, which is intended to insulate the process from political interference, and of withdrawing time from the project group that made the licence decision, thereby denying them an opportunity to reappraise the final bid.

Most damning of all, from a democratic and political perspective, Lowry stands accused of depriving the Government of the day of its role as the final decision maker and misleading party leaders, including the then Taoiseach John Bruton, by intimating that the Government should have no discretion in the decision to award the licence to O'Brien's Esat.

Both Lowry and O'Brien strenuously reject Judge Moriarty's findings.

The literary restraint deployed by Judge Moriarty is significant as the State is currently fighting off litigation by two of the failed consortia.

Tomorrow, disappointed bidders Persona and Comcast will ask the Supreme Court to set a date for an appeal against an earlier High Court ruling that halted their multimillion-euro compensation claims.

It is hard to know what chances the two failed bidders have of reopening this legal equivalent of a Pandora's box, despite the truly damning conclusions of Judge Moriarty.

Did either party adopt a "wait-and-see" tactic to see what information about the tendering process the payments-to-politicians tribunal would unearth?

Are they entitled now to rely on its contents?

Even if the disappointed bidders were entitled to rely on the contents -- which is doubtful as statements obtained by any tribunal of inquiry can not be used in any subsequent civil or criminal proceedings -- what standard or burden of proof could or should be applied?

Will gardai investigate the awarding of the licence? Not unless a party makes a formal complaint, which would spark off a new and costly round of inquiries.

With a few notable exceptions aside, the superior courts have had little appetite for interfering in the interior workings of the tribunals.

The wealth of legal actions waged as a result of the tribunals -- Moriarty has been hit with eight legal challenges to date, four of which are outstanding -- raises fundamental questions about the way in which Irish society deals with matters that require urgent public inquiry.

In his final report, Judge Moriarty laments the environment in which modern tribunals of inquiry have been asked to investigate the possibility of improper associations between senior politicians and powerful figures in the business world.

How do we get to the heart of a controversy without riding roughshod over the rights of individuals who appear before tribunals, often with doubts cast over their reputations for many years?

HOW do we improve our method of investigating matters that give rise to legitimate public concern?

Though it will get lost in the blizzard of details of alleged deals and high drama, one of the most important parts of Judge Moriarty's report is an extensive list of recommendations in respect of several key areas.

These included political funding, reform of company law, bank regulation, tax laws and protection of the State's tax base from fraud or evasion by the use of off shore accounts.

Few winners have emerged from the Moriarty Tribunal and many of its stars are feeling bruised and battered by the adversarial, 14-year war of attrition.

The biggest loser is the taxpayer as we foot the bill for a failed political process.

Irish Independent

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