Tuesday 16 July 2019

John Drennan: Paddy may not know what the full story is but he knows who will pay

The Moriarty Tribunal is yet another example of how our failed State cannot police itself, writes John Drennan

ON the night of his election victory, Enda Kenny provided us with an intriguing insight into his view about the essential character of his new subjects when he told a gobsmacked nation that "Paddy likes to know what the story is". After last week's Moriarty report, when it comes to the 14-year war between Michael Lowry, Denis O'Brien, the civil service and the Moriarty Tribunal, Paddy certainly knows a lot more about that unfortunate story.

But, as the controversies and denials raged, it could certainly be argued that Paddy still does not know half enough.

Or it would perhaps be more accurate to suggest that, when it comes to the modern equivalent of Charles Dickens's famous Jarndyce versus Jarndyce legal case, Paddy still doesn't know the situation with sufficient clarity.

In fairness to Justice Moriarty -- who experienced abuse over the last week that was hysterical, libellous and simply vulgar -- the failure of his report to achieve what our American friends call 'closure' on this debilitating conflict, is not entirely his fault.

Mr Moriarty is actually one of the biggest victims of another Fianna Fail-style solution to an Irish problem.

It is generally believed that social partnership represents the apotheosis of the capacity of FF and the Progressive Democrats (we haven't forgotten you, Mary or Michael) to degrade standards of governance to such an extent they have turned the country into an Eastern Bloc state.

But when it comes to the most dramatic symbol of the poisonous culture of FF/PD-style solutions to Irish problems, tribunals run the bearded union leaders close.

The best way to summarise the unsatisfactory nature of the Irish tribunal is that, if criminals were to devise their preferred method of inquiry into their actions and the vehicle of punishment that best suited their interests, they would unanimously plump for the tribunal.

This was certainly the case when it came to last week's belated publication of the Moriarty report.

The conclusion of any successful legal process should provide us with a sense of finality, certainty and justice. In Ireland, however, our acceptance of FF-style solutions to Irish problems means we were being far too optimistic in hoping we would secure any of these outcomes.

Tuesday's Moriarty tribunal report was certainly dramatic in its certainty that Michael Lowry acted as a minister in a manner that was "profoundly corrupt" and that the defining characteristic of Mr Lowry's political career had been the "cynical and venal abuse of office".

Denis O'Brien did not escape either. Justice Moriarty might have been less scathing about him, but, when it came to his findings of patterns of "persistent and active concealment" and a desire to "thwart the expressed will of the Oireachtas", Mr O'Brien was firmly in the crosshairs.

Sadly, plenty of innocent bystanders also suffered, for the last thing we as a nation needed was further confirmation of our stereotype as the rogue state of Western Europe.

In the aftermath of the report, it was claimed that the civil servants who had led the mobile phone-licensing process had escaped relatively lightly. This was an extraordinary position, for it is difficult under any normal standards to understand how Tuesday was a good day for the public sector. The report, after all, made it clear that the department in charge of the licence had lost its bearings and failed to co-operate properly with a tribunal set up to inquire into its activities.

Once again we were left to ask if there is any government department in this State which, when confronted by anything more complicated than the issuing of parking fines, does not immediately collapse into a state of 'systematic failure'.

But apparently, once again, any day where they are merely accused of behaving stupidly rather than venally is a result for the best-paid senior civil servants in the Western World.

The report even managed to take some of the sheen off Mr Kenny's escalating halo. In fairness to Kenny, after a less than impressive initial response the FG leader did recover some ground. But a Taoiseach who is still on probation would be wise to realise that it will not be enough for the man who less than a year ago jocosely asked Mr Lowry, "Is this an application form for FG I see in your top pocket?" to follow the old FF "read it and bin it" approach.

The list of failures does not end there. Instead, as has been the case with every other tribunal set up to examine the misdeeds of the wealthy, the powerful and (mostly) FF politicians, it has not been a success.

Justice Moriarty may have provided us with our day of drama but, in spite of the judge's coruscating findings, there will be no jail sentences or fines.

The reason for this is that while our legally sterile tribunals can offer opinions on the facts of a case, they have fewer powers to punish than the district court.

This carries serious consequences, for in spite of the uncritical deference normally accorded to tribunal findings by Vincent Browne and journalism lecturers, this lacuna means a tribunal's decisions do not possess the weight or the sense of finality that accompanies the result of a court case. Tribunals instead are a better dressed and far more costly version of the views of the man sitting at the bar counter.

Such factors mean the enemies of the Moriarty tribunal cannot be completely dismissed for the low standards of proof, and our tribunals' status as investigators and judges in their own case leaves them dangerously open to the accusation of bias.

When it comes to his ongoing war against the tribunal, Denis O'Brien can adduce plenty of evidence. The errors made by Moriarty over the legal advice provided by Richard Nesbitt to the Government would in any court of law provide compelling grounds for appeal, while the tribunal's dismissal of the evidence of the Danish telecoms consultant Michael Andersen about the probity of the licence award was less than convincing.

Ultimately, the most dominant feature of the Moriarty report is that it is yet another example of how our failed State cannot adequately police itself. The objective of our many tribunals of inquiry was to provide us with some form

of national catharsis which would, when it came to the sins of the nation's past, provide us with a definitive judgment and a just vengeance.

Instead, what we got was the legal equivalent of some halfway house -- astonishingly, after 14 years of blood and treasure, last week we merely reached the end of the beginning of this war.

The defining feature of any FF solution to an Irish problem is that it satisfies no one and achieves nothing. In Justice Moriarty's case, the denouement is also likely to enhance the cynicism of a jaded public who are already wondering if, like the banks, they will pick up the tab for this latest debacle of the elites.

This denouement alone means one can hardly blame them for being cynical.

All the careful spinning about "comic book" reports and expressions of delight at the sending of the report to a DPP who can do absolutely nothing with its contents means Paddy may not know what the full story is.

But he has a pretty good idea who is going to end up paying for it.

Sunday Independent

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