I have three very simple messages that I want to leave with all of the Members of this House.
1.I did not engage in any wrongdoing in relation to the awarding of the second mobile phone licence.That is a fact which is substantiated by every witness that gave evidence.
2.I received no payments or benefits from Mr. Denis O’Brien in relation to the second mobile phone licence. Not a single witness before the Tribunal gave evidence that I did receive a payment.
3. Mr. Moriarty has created a false impression in his report that I was the net beneficiary of approx 900,000 arising from two property transactions and a loan agreement – This is not a truthful or accurate presentation of the facts. The fact is that absolutely no money accrued to me from the transactions referred to in his report. The trail of documentation both legal and accountancy confirm the validity of this statement.
As everyone in this country is aware my financial affairs both personal and business were the subject of intense Revenue Commissioners investigation. My professional Advisors last Friday re-confirmed to me that these 3 transactions referred to in the Moriarty report were covered under the period of Revenue investigation. The Revenue Commissioners accepted that I had no income from these transactions and therefore they attracted no tax liability. It is therefore quiet extraordinary that Mr. Moriarty can give such a misleading impression to the Irish public.
Those are the three simple messages. That is the truth. Those are the facts.
This House established the Moriarty Tribunal 14 years ago – 14 years of intrusion, examination, scrutiny, interference, stress and vilification. No trial has ever lasted so long with so little fact or truth to justify its existence. The Moriarty Tribunal has become a monster of extraordinary proportions feeding off itself and costing this country a fortune. For an inquiry to go on for 14 years in a democratic society is absurd. Yet here I stand 14 years on responding to a report that has no basis in fact but nonetheless accuses me. There is no evidence to support this Report’s findings. Every witness questioned was absolutely clear that I did not influence the outcome of the mobile phone license award in any way. So why was the tribunal and Judge Moriarty unwilling to believe or accept those testimonies under oath. Why is the Tribunal happy to fabricate and invent the content of a conversation between Denis O’Brien and I in 1995 that never happened, that both of us confirmed never happened and nobody else was present to confirm otherwise? What is the legal basis or justification for such an outrageous assumption and finding? John Waters in last Friday’s Irish Times highlighted the injustice of this approach by the Tribunal to evidence when he wrote;
“To conclude that a particular meeting dealt with matters which 100 per cent of the participants insist were not discussed is to propose that every allegation comprises its own proof. This is not the “balance of probabilities”, but the elevation of suspicion to the level of hard evidence”.
This comment I believe puts this entire tribunal travesty into a perfect context. It was not about evidence but assumptions; not about truth but about self justification and media sound bites; not about legal jurisprudence but about witch-hunting and scapegoating. It was driven by forces and syndicates in this country whose vested interest, ambitions and greed were thwarted by a perfectly legitimate licence application procedure. During the prolonged enquiry Rumour and innuendo suddenly became fact; guilt by association became the norm; any association between the parties involved became proof that something sinister was going on.
Michael Moriarty took his Terms of Reference from this House and converted them himself into an open-ended mandate without any restraint being shown. He pursued this open ended mandate with an unlimited budget and with zero accountability to this House over the past 14 years. The ultimate outcome of this process is a report which is filled with intemperate language that is professionally inappropriate, has no evidentiary framework or merit and makes claims that wouldn’t stand up to scrutiny in the local pub let alone an esteemed courtroom.
I have served in this House as TD for North Tipperary for 24 years. I have lived with this Tribunal animal for the past 14 years. Not a single day passed that this Tribunal did not negatively impact on my personal or professional life in some way or another. This Chinese torture has taken an enormous toll on me in every respect. This House set up this Tribunal and I believe that I am at least entitled to give my right of reply. I owe it to myself to do so.
Let me be absolutely clear about this. Michael Moriarty has been proven wrong on several issues in the past and he is grievously wrong with the opinions that he reported to this House last week. The Members of this House would do well to remember that thousands of cases are successfully appealed in this country, mostly because Judges get it wrong. And they get it wrong despite the fact that both Civil and Criminal trials are subject to strict Rules of Evidence. It is precisely because of these well tested Rules of Evidence that the ultimate decisions of the Court are respected, not because of the personality of the Judge.
The facts are that my position was completely vindicated by all of the sworn evidence that was given before the Tribunal by dozens and dozens of witnesses over the years. Not a single person came into Dublin Castle and gave sworn evidence that I interfered in any way in the second mobile phone licence process. Not one. Furthermore, not a single person came before this Tribunal since day one to say that I received any money from Denis O’Brien. Not a single person gave evidence to the Moriarty Tribunal in support of what is in the Tribunal’s final report. What we are debating here today is one man’s opinion. It is not facts. It is not evidence based. Let no-one here forget that basic principle.
The only parties involved in this entire process who have disputed my principal positions were Michael Moriarty, his team of multi-millionaire lawyers and certain members from the losing applicants in the licence process. These are the very same individuals who have been doing an enormous amount of crowing in the media over the past week. Let no-one in this House forget that the stated goal and objective of those Parties is to sue this State for the highest possible amount of damages. That is the aim of those individuals. They have sat back since 1995 and let this Tribunal, paid out of State funds, do all of the leg work in terms of preparing damages actions against the State. It is indeed a bewildering situation. They will not succeed in their objective for compensation because there is no evidence to support a successful court challenge.
I had always understood it to be the case that a Tribunal was duty bound to reach conclusions based only on the sworn evidence as provided to it in public sessions. This is what Michael Moriarty himself said he would do in a ruling he delivered way back in 1999. How then has it happened that he has reached these primary conclusions in his report, when it is a fact that he did not obtain a single witness to support his theory of events in either the licence or in respect of alleged payments to me? It is impossible to reconcile this obligation to report only on evidence heard in public, with what is in his final report to this House. What was reported is simply not based on evidence. Somewhere along the line this duty to report only on evidence was cast to one side. I was alarmed to learn in 2006 from Mr. Moriarty that he would not actually be making findings of fact, but rather that he would be reporting based on “reasonably informed expressions of opinion”. Would the Oireachtas have set up a Tribunal costing tens of millions of Euro to make findings of fact if it knew that 9 years later the tribunal would turn around and announce that it was only making a report based on “opinions”.
I would offer this challenge to any Member of this House; find me an extract from the actual evidence given to the Tribunal over the past decade which supports the view that I either interfered in the licence process or that I received money from Denis O’Brien. There are years of transcripts to work from. If Members of this House wish to lazily parrot the words from the Tribunal’s report in order to secure some perceived political points, there is little that I can do to stop them. Perhaps some of you would just dig a little deeper and see if there is evidence to back up these findings.
Less than 4 months ago, the Sunday Tribune published the results of a comprehensive poll conducted among no fewer than 129 sitting TDs and Senators. The Tribune asked those Members of the Oireachtas a simple question “Do you have confidence in the Moriarty Tribunal?” More than two thirds of those polled said No. Only one in five answered Yes.
The Sunday Tribune as part of this front page piece stated the following:
“The lack of confidence in the Tribunal was not confined to any particular party or specifically to either the Dáil or Seanad, with the dissent spread between the two houses and across the political spectrum”.
Many members of this House have gone on the record here over the years openly criticizing the operations of the Moriarty Tribunal. I have seen much commentary in recent days about attacks on the Judiciary and statements made about the deplorable nature of persons seeking to defend themselves against the damaging personalized opinions emanating from the Moriarty Tribunal. I would remind this House that the Chairman of a Tribunal does not sit as a High Court Judge; nor did he sit as a Member of the Judiciary. There is absolutely no requirement that the Sole Member of any Tribunal needs to be a Judge and in my experience it would be far better if these roles were never ever again confused in this way. Tribunals gladly take the position that they are not Courts at all when it suits them (which is most of the time) and yet they wish to avail of the cloak of protection of the Judiciary when justified criticism is aimed in their direction.
Tribunals (and particularly this Tribunal) do not provide any of the protections or standards that any citizen would be entitled to as matter of right in any Irish Court of law. It was the Moriarty Tribunal that introduced into Ireland the desperately low standard of the “reasonably informed expression of opinion” as the basis upon which it would arrive at its conclusions. The Members of this House need to give very serious consideration as to whether this is an acceptable standard to be employed in such a serious process with such far reaching consequences. Do you think it is fair that career civil servants ought to have their personal and professional reputations shredded based on opinion where there is no evidence? This is what the Moriarty Tribunal has done. Do they not deserve better?
One of the greatest flaws in the modern day Tribunal system in this country is that a Tribunal looks like a Court, it has all the appearances and airs and graces of a Court; but it provides the accused with absolutely none of the protections that would be provided before a Court. It is not obliged it would seem to follow the standards of law which are sacrosanct in any Irish Court. It does not follow the rules of evidence. It does not follow the procedures of a Court. The Moriarty Tribunal speaks in innocuous tones of “relaxing’ the rules of evidence. The reality is – the rules of evidence were thrown out the window.
A Tribunal is really no more than a prosecution show trial that gets to operate without any of the checks and balances that are properly embedded into any respectable democratic Court process. That is what makes a modern day Irish Tribunal of Inquiry such a dangerous animal and something that is nigh on impossible for any citizen to properly defend themselves against.
I say to this House without fear or hesitation that the Chairman of this Tribunal did not act with the detached independence as one would properly expect. He assumed the role of Judge, Jury, Prosecutor and Executioner all rolled into one. Is there any other legal process in the world where the prosecution team would work privately with the Judge, eat with the Judge and share an office with the Judge – for 14 years? In any other legal process, any relationship between the prosecution team and the Judge during a trial would result in the collapse of the process in a deluge of controversy.
In the Irish world of Tribunals, the prosecution team and the Judge go to work together and do so as close friends and colleagues for 14 years. We seem to have become immune to this incredible proposition. I cannot recall a single instance in the past 14 years when any objection to the approach of Tribunal Counsel was accepted by the Tribunal Chairman. Not one. How would any of you feel if you were to walk into Court tomorrow as a Defendant to find that the prosecutor worked in the same office as the Judge, discussed the case openly with him, that they co-operated together to prepare the questions for the defendants? It seems crazy- but this is what happened for the last 14 years at this Tribunal.
This Moriarty Tribunal’s report is noteworthy for its extraordinary wide range of scathing attacks on the reputations and characters of an enormous amount of individuals in Ireland and abroad from all walks of life. It seems that no-one who looked sideways at this Tribunal over the past decade was spared its withering wrath in its final report. Dozens and dozens of people get it right between the eyes in scornful and personalized comment within the Tribunal’s 2,000 pages. Anyone who gave evidence to this Tribunal which conflicted with the case being prosecuted by the Tribunal was attacked in this report.
Yet, the Tribunal’s own sensitivity is incredible, in terms of any perceived criticism leveled against the Chairman or any members of his legal team. The Tribunal report devotes entire sections in its report to defending the supposed honor and integrity of its own team whilst shredding the reputations of others on a wholesale basis. How is this fair or balanced?
If Michael Moriarty is entitled to be protected or insulated as a member of the Judiciary, then he ought to have applied the standards and principles that go along with that High Office. His Tribunal was not an inquiry; it was a show trial where he and his legal team decided what evidence would be heard and how it would presented to the public. The amount of evidence and information that was withheld and concealed by the Tribunal was astonishing. There is absolutely no doubt but that if the Moriarty Tribunal was a criminal process, it would have collapsed under the weight of its own impropriety many years ago.
Their rejection of the absolutely overwhelming body of evidence given in public sittings is the real story of the Moriarty Tribunal. I am not aware of any other legal process, in Ireland or elsewhere, where a Judge could base his conclusions not on the evidence he actually heard before him under oath, but on a theory or opinion of events that he and his lawyers constructed. Indeed, as I will explain, when the first theory on the license process was blown out of the water by the forced calling of additional evidence, the Tribunal just went back to the drawing board and created a freshly minted theory which they refused to share with anyone in the form of new provisional findings.
The basic summary of the Moriarty Tribunal is that Mr. Moriarty refused to accept any of the evidence heard, but went with his own preferred story as to how certain things happened 15 to 20 years ago. He tells a great story to be sure and he does not spare the verbose dramatic flourishes, but you have to scratch just a little beneath the veneer and the gaping cracks in the theory start to appear.
In this context, I believe that I am fully entitled to voice my concerns about this flawed process in this House today. I have taken the slings and arrows for 15 years with very little at my disposal to defend myself. The lawyers for the Tribunal cashed cheques for over €50,000 a month, every month, every year for 14 years. They were handed this money to prepare and hone their attacks on me and yet I was left to fend for myself as a private citizen without State support. The Chairman of this Tribunal, who did not sit as a member of the Judiciary, should not be cocooned away from questioning or critical appraisal.
Taoiseach, you yourself repeatedly questioned your predecessor during your time as Leader of the Opposition in a manner that could only be described as giving voice to your real serious concerns about the Moriarty Tribunal and its activities. You were absolutely correct and justified in doing so.
As recently as 11 May of last year, you asked An Taoiseach Brian Cowen the following question
“My understanding is that the Attorney General advised the tribunal of the legality of the change of ownership in respect of the consortium bidding for the licence. It has come to light only recently that this was a fact. How could legal personnel paid at premium rates on a daily basis make a fundamental error such as that, and that legal adviser to the State and to the Government advisd on the legality of the change of ownership yet that did not emerge until quite recently?”
You went on to state trenchantly that what you described as “two grievous errors” had been sensationally uncovered in the approach adopted by the Moriarty Tribunal. You openly asked the Taoiseach if he believed that the Sole Chairman of the Tribunal was now in a position to produce a credible and impartial report and whether the then Taoiseach could have confidence in the Moriarty Tribunal in light of these disclosures.
Taoiseach Kenny, you were undoubtedly at that time supported in that position by your party colleagues who now make up the majority of the Government benches in this House. I will answer that question for you now. This Tribunal did not produce a credible and impartial report. Your fears, expressed in this House have proven to have been very well founded.
Michael Moriarty and his team of lawyers have been wrong on many, many occasions. I will give this House examples:
- On 25 February 2008, the Tribunal published a written ruling on its website dealing with a critical matter concerning information that it has received from the Office of the Attorney General. Two years later, it was forced to take down that ruling and post a new ruling which said precisely the opposite to what the Tribunal had been informed by the AG’s Office.
- On 25 September 1995, the Tribunal published another ruling in which it dealt with many of the matters under inquiry. This ruling was shown to have been flawed and wrong in many material respects.
- This Tribunal pursued a line of inquiry with me in which it openly alleged that I was involved in some secret trust relating to the Doncaster property. It transpired through questions I asked of Tribunal Counsel that the Tribunal had already received conclusive evidence from the trust management entity in the UK that I had absolutely nothing whatsoever to do with that trust in any capacity. The Chairman said that this was an error.
- Tribunal Counsel denied meeting with Officials from the Office of the Attorney in Dublin Castle in 2002 during which critical matters were discussed. Notes were produced showing that Tribunal Counsel attended this critical meeting. That again was an error.
- Dr. Peter Bacon was retained by the Tribunal in 2002 to prepare secret reports which were used to tear apart the second mobile phone licence process and to question civil servant witnesses for years. When this secret relationship was uncovered, the Tribunal made a humiliating climb down and ruled, 5 years later that Peter Bacon was not an expert in this field and that the Tribunal could not rely on the contents of this report. Wrong again.
Although he was forced publicly to admit to those errors, the Chairman of the Moriarty Tribunal has never properly explained how those “significant errors” ever came to pass. It is impossible to believe that these were simply errors.
In the case of the involvement of the Office of the Attorney General in advising on the awarding of the second mobile phone licence, the impediments that were put in place by the Tribunal to prevent the calling of evidence to unmask these staggering mistruths were startling. It is a matter of fact that the Moriarty Tribunal repeatedly refused to call the evidence from the Office of the Attorney General and only relented at the very last minute in the face of Judicial Review proceedings. It was only because of this threat of Judicial Review proceedings that the truth in relation to this ownership issue was allowed to emerge publicly. Mr. Moriarty was proven wrong then- he is wrong now.
It is also a fact that Michael Moriarty has never explained how it came to pass that he ignored ten letters from the Office of the Attorney General which directly contradicted the position that his Tribunal had openly adopted concerning this critical ownership issue. As Counsel for the State put it during a public sitting in 2009, the Moriarty Tribunal refused to engage with the “inconvenient truths” which defeated the Tribunal’s theory in relation to the licence process as it then stood. However, the Tribunal would, in time, get around those evidentiary roadblocks. The Tribunal then went back to the drawing board and re-wired it’s pre-determined conclusion that I was guilty of wrongdoing in relation to the licence process. It is accepted that grievous errors were previously made by this Tribunal. However, this was nothing like the grievous sequence of errors that was unleashed on the Irish public this day last week. Michael Moriarty was proven to be wrong on many issues in the past; I am telling this House here today that he is again wrong in the conclusions of his final Report.
Despite the consistent and trenchant criticisms levelled at the approach of Moriarty Tribunal from Members of this House and from the floor of the Seanad for many years, it seems as though Mr. Justice Moriarty has now taken possession of an impenetrable cloak of infallibility and has been bestowed with the ability to repel any semblance of attack or criticism. He has a shield of invincibility which means that no member of this House can bear to even question the outcome of this report.
Despite being proven wrong on so many matters in the past and his less than stellar performance forming the basis of severe criticism in this House, his word is now Gospel. Months ago, serious questions were raised as to his ability to produce a credible and impartial report. Now, any view falling short of 100% declaration of acceptance and support will not even be countenanced or tolerated in this House. Since last Tuesday, the Moriarty Tribunal report has been accepted and trumpeted by some members of this House as though it is Gospel; as though every opinion and position contained within it is impervious to criticism or even a contrary view. Politics can be a very fickle pursuit. A position taken today can be abandoned tomorrow for a political advantage tomorrow. The approach in this House to the Moriarty Tribunal is proof of that.
This fickle approach is certainly not unique to members of this House. I have noticed this past week that some leading media commentators have simply refused to critically assess or question the opinions arrived at it in the Tribunal’s report or to even question the means by which those opinions were arrived it. This is bizarre considering that many of these writers were the authors of some hugely critical analysis; particularly over the past two years.
All of this is quickly forgotten. Michael Moriarty’s wrongs and failings have been cleansed. Again, it seems as though many of those in the media believe that Mr. Justice Michael Moriarty issued his report from some throne of infallibility and that all doubts and concerns about his approach as widely expressed over many years were dispelled instantaneously. The same journalists who were writing about the “Tribunal’s appalling vistas” or the “credibility of the Tribunal being in tatters” or the “beleaguered Tribunal admitting significant errors” now present their articles as though the opinions of the Tribunal are sacrosanct and that to express even the slightest doubt or concern would be sacrilegious.
The ferocity and personalised nature of Michael Moriarty’s condemnation serves to conceal the threadbare nature of his conclusions. The very least that one would expect from a team of lawyers that shared a €45m bounty over 14 years is that they would be able to write a credible, factual and convincing report. The Moriarty Tribunal’s final report is nothing more than the presentation of the opinions of the prosecution.
In any legal process, if one side was given the sole authority to write the judgment in the way they wanted, without any interference from the other side, then of course it will read like a compelling and damning verdict to an unsuspecting public. This is exactly what I faced last Tuesday. It was a completely one sided, self serving production designed to inflict as much damage as possible on those who opposed the Tribunal whilst vigorously defending every step and action taken by the Tribunal itself over the past decade.
This is my opportunity to present my version of events and to try to defend myself. I do not have €45m worth of lawyers at my disposal to defend my case. I will not get glowing national and international media attention promoting my version of events. I most certainly will not get the unquestioning adulation of the Members of this House.
I wish to state clearly, here and now, that the Report as issued by Mr. Justice Michael Moriarty last Tuesday is not factual, it contains horrendous errors and reaches false conclusions. I do not accept the contents of this report and I never will. I will make absolutely no apology for that. The Moriarty Report is not some piece of unquestioned doctrine that must be followed with a slavish devotion. I know it to be wrong and I will not cower in some dark corner after being kicked from pillar to post and refuse to call a spade a spade.
The opinions expressed in this report have inflicted enormous damage on me. Much more importantly than that, they have inflicted enormous damage on the credibility and integrity of a great many individuals who deserve and are entitled to much better. The number of decent people subjected to scathing, relentless attack by the Moriarty Tribunal is staggering. The personalised and vindictive rhetoric found throughout the report is striking. It seems that anyone who displeased the Moriarty Tribunal in any way have been maligned.
Anyone who dared offer evidence or views which did not accord with the pre determined Moriarty Tribunal theory have been denounced by the Tribunal. This was rough Justice getting its finest hour in Ireland. Last Tuesday was pay-back time, albeit of a different variety to that which the Members of the last Rainbow Coalition Government will certainly remember.
Members of this House should give very grave consideration to a report which calls into serious question the integrity and credibility of a large number of career civil servants. I know the civil servants impugned in this report. I know that they are among some of the finest people that I have ever had the pleasure to encounter in my lifetime. The treatment that they have endured, individually and collectively, at the hands of this runaway Tribunal is nothing short of a national disgrace.
The members of this House, and particularly those who have had the privilege of serving in Ministerial Office, know only too well that the civil servants that run the public administration of this country do so to the very highest levels of personal integrity and competence. We are not short of problems in this country, but the Irish Civil service is something that we can be proud of. The Moriarty Tribunal’s report is, amongst other things, an assault on the honour and integrity of the Irish Civil Service. The Moriarty Tribunal is the first body in the history of this State to call the reputation of the Irish civil service into question. Where does the House stand today when the reputations of many of Ireland’s finest civil servants have been dammed on nothing more than “opinions”?
I would urge the members of this House to ask themselves if such an attack on the previously unblemished record of the Irish Civil Service is merited.
In November 2008, the Moriarty Tribunal circulated what it called provisional findings; essentially it was its draft report in summary terms. I was appalled when I read it. In this draft report the Tribunal had found that numerous civil servants were “in thrall” to me and because of this they had facilitated wrongdoing. The thrust of the Tribunals report at that time was that I made known my preferences to the Project Team through some nod and a wink and they busily set about delivering the result that I wanted. According to the Tribunal the wrongdoing as it was at that time was largely carried out by the civil service in line with what they knew was my general desired outcome. One of the provisional findings issued to me read as follows:
“Mr Lowry intervened in the process and influenced the outcome of the process by making known to the Secretariat to the Project Group, which comprised officials drawn from the Development Division of the Telecommunications Section of the Department (“the Secretariat”), and in particular through interaction with Mr Fintan Towey in the course of a telephone conversation, his preference as between the top two ranked applicants in circumstances where those officials were in thrall to him as Minister, and in doing so made that preference known to the Project Group”
Many of the other provisional findings referred to me being “facilitated” in my alleged wrongdoing by the Civil servants involved. The Moriarty Tribunal was clearly alleging cooperation and collusion involving the civil service. The adverse provisional findings in relation to the licence process were focused on what the Tribunal called the “ownership issue”. This was the involvement of Dermot Desmond as a 20% shareholder in Esat Digifone. The thrust of the Tribunal’s provisional findings was that I, along with a whole host of civil servants, acted illegally and improperly in allowing the licence to be awarded to Esat Digifone when the make-up of the consortium that was awarded the licence was different to that which applied.
The circulation of this draft report caused consternation. Those familiar with the Tribunal will be aware that the Department openly threatened the Tribunal with Judicial Review proceedings. The Tribunal was forced to call additional evidence from the Office of the Attorney General, from an eminent Senior Counsel and further evidence from the Civil Service. The Tribunal fought the calling of this new evidence tooth and nail.
However, this evidence comprehensively dismantled the very basis of the Tribunal’s theory and forced the Chairman of the Tribunal into an embarrassing public declaration that he had made very significant errors. This episode, along with the later evidence of Professor Michael Andersen, tore what was the Tribunal’s draft report completely to shreds. The blue print which the Tribunal had assembled and which it was within weeks of publishing as a final report was blown out of the water. Many of the very same journalists who have trumpeted the Tribunal’s report in the past week were writing articles decrying the approach taken by the Tribunal in relation to the licence process. It was widely reported that the Tribunal had failed completely to uncover any “smoking gun”. The licence inquiry was being decried as a damp squib or an appalling vista.
I, along with every other affected party, was virtually certain that it light of this additional evidence, that the Moriarty Tribunal’s report would deem the licence free of any form of interference on my part. I vividly recall the defeatist body language of the Tribunal’s legal team as witness after witness pummelled their theories relentlessly and left the Tribunal’s draft report without a shred of credibility.
Professor Michael Andersen rang rings around Michael McDowell SC for two weeks in November last year. The Tribunal did not even dare to challenge the credibility or veracity of Professor Andersen’s evidence when he was in the witness box for two weeks. Every theory that the Tribunal had was comprehensively and decisively ripped asunder. Then the Moriarty Tribunal did the most cowardly thing imaginable in the circumstances; they did not challenge him when he was in the witness box because they were simply unable or unwilling to do so; they refused and restricted questions interested parties wanted to ask him; they curtailed the time allowed for those parties to question him and they let him leave the witness box. It is insidious of the Chairman to reject the evidence of such a competent and professional witness.
Professor Michael Andersen is one of the world’s leading experts in mobile telecommunication competitions processes. He has acted in over 120 such competitions in over 50 countries around the world before he came to Ireland in 1995. He was the only expert who testified in relation to the licence competition process. And yet the approach of the Tribunal is to pretend that he never happened. It is nothing short of an outrage. I would like to read just a few paragraphs of Professor Michael Andersen’s sworn statement into the record of this House.
8. I did not meet Michael Lowry either before, during or after the GSM 2 process. Neither I, nor any of my colleagues in AMI, had any contact whatsoever with Michael Lowry. As part of the GSM 2 process or indeed otherwise. Other than very general public policy statements made by him as Minister, I was not aware of any directions, instructions, preferences or even opinions in relation to the GSM 2 process coming from Michael Lowry. I certainly was never aware of any preference or apparent preference on the part of Michael Lowry for any particular applicant in the GSM 2 process. No such preferences were ever relayed or even intimated to me by any of the civil servants involved or indeed otherwise. As far as AMI was concerned, Michael Lowry was not part of the GSM 2 decision making process.
9. I should state that, based on my extensive experience worldwide, I would not regard direct involvement by a Government Minister in such bid processes as being highly unusual. However, I am certainly not aware of any such involvement and/or interference in the GSM 2 process on the part of the then Minister, Michael Lowry. Michael Lowry simply did not feature as part of the competition process. I am confident that if any such interference on his part existed, then I would have become aware of it as part of my central and critical involvement in the GSM 2 process.
10. I understand that the Tribunal has made allegations against a number of civil servants in relation to their involvement in the GSM2 process; such allegations being based on an apparent preference for the Esat Digifone application in that process such that certain acts / decisions were taken by those civil servants which are deemed by the Tribunal to have conferred some form of a benefit or advantage on the Esat Digifone application. I strongly believe that any such allegations of wrongdoing on the part of the civil servants involved are wholly without any substance or basis.
13. I am entirely satisfied, from my perspective, that all of the civil servants involved in the GSM 2 process carried out their work with the utmost integrity and without any element of favouritism for any applicant being brought to bear. I am also satisfied that if any such desire or preference to assist any particular applicant ever existed, then I would have quickly become aware of such a preference given my close involvement in the GSM 2 process any my experience gained from involvement is such competitions the world over.
14. I understand from my dealing with the Tribunal (particularly in my private meetings with the Tribunal legal team) that certain members of the Tribunal’s legal team had a strong view that Esat Digifone ought not to have won the second mobile phone licence competition and that the best candidate was the Persona application. I would absolutely reject the justification of any such view. I am unaware of any qualifications or expertise on the part of the Tribunal’s legal team which would give their view any degree of justification. I am not aware of any evidence that would support such a view. Persona was the second highest ranked application according to the evaluation criteria; it was not the highest ranked. It is my view that certain members of the Tribunal’s legal team demonstrated a bias against Esat Digifone and in favour of Persona. I have previously, together with Mr. Jon Brüel (Co-leader in the AMI Team for GSM 2), written to the Tribunal regarding this matter and also evidenced this in relation to the Tribunal’s so-called provisional findings. I have not received a substantive response from the Tribunal. I have never met with the Chairman of the Tribunal.
15. Esat Digifone Limited (applicant A5) won the second mobile phone licence competition for the plain and simple reason that it submitted the best application in accordance with the criteria set down by the Irish Government.
19. During my numerous private meetings with the various member of the Tribunal’s legal team between 2001 and 2003, it was suggested to me that Presona’s application and credentials were superior to those of Esat Digifone. During these private meetings, certain Tribunal legal team members clearly sought to undermine Esat’s credentials and stress the relative merits of Persona. I recall, in particular, a remark made to me personally by Senior Counsel to the Tribunal, Mr. Healy, during one of these private meetings that Esat Digifone’s site options agreements / planning permission documentation as submitted in their application were not genuine. Indeed he used one of the most defamatory words you could use to describe that documentation, I found Tribunal Counsel’s approach to this matter (and indeed to their advocating of Persona’s position generally) to be troubling. It seemed quite clear to me that at least part of the Tribunal was operating under a pro Persona (and anti Esat Digifone) agenda.
20. This apparent bias in favour of Persona and against Esat Digifone was also evident at a meeting held in Copenhagen on 23 October 2003 between myself, and my Solicitor Mr. Carsten Pals and Mr. Jerry Healy and Mr. Stephen McCullough representing the Tribunal. I would note that I hosted and funded the cost of this full day meeting at Mr. Pals’ office. At this meeting it was very evident to me (and indeed to my lawyer, Mr. Pals) that Tribunal Counsel was operating on the basis of some form of a foregone conclusion or predetermined outcome in terms of what had happened during the GSM 2 process. Tribunal Counsel was clearly only interested in pursuing matters that they felt could be interpreted as reflecting negatively on the GSM 2 tender process. I would characterize their approach as a form of “thinking backwards”. It was as if the Tribunal has already decided what the final result of their deliberation would be and that the Tribunal Counsel were simply intent on securing information that could somehow support that result or be interpreted as supporting that result.
21. Subsequently, I received a document from the Tribunal which was supposed to be notes or a record of that meeting on 29 October 2003. I was most disturbed at the contents of that document. I did not regard that document as being an accurate reflection of that meeting and was disturbed by the Tribunal’s attempts to have me confirm it as being accurate. In particular, I was offended by the defamatory remarks made about Mr. Martin Brennan as contained in the Tribunal’s document. I most certainly did not make such remarks or suggestions in relation to Mr. Brennan during the course of that meeting or indeed otherwise. I believed the notes to be inherently biased in several respects and refused to confirm the contents of those notes as being accurate.
This sworn statement speaks for itself. I had never met nor spoken with Professor Andersen before meeting him at Dublin Castel when he came to give evidence last November. Following this evidence on top of the previous evidence relating to the Office of the Attorney General, it absolutely expected that the Moriarty Tribunal simply has no choice but to begrudgingly accept that there was absolutely no interference or wrongdoing involved in the licence process. I had understood this view to be generally accepted by everyone involved with the Tribunal; this includes media personnel who closely followed events. But this is not what happened.
Instead, the Tribunal went back to the drawing board and re-wired or re-engineered a completely new theory. They refused to inform any party of this new theory. The first we learned of it was last Tuesday. What emerged is that this Tribunal was going to dam the licence come hell or high water. The original theory fell apart- so what? The Moriarty Tribunal just came up with a new one.
It seems to me that confirming that the licence process was free of interference became the real “appalling vista” for the Moriarty Tribunal. I firmly believe that the Moriarty Tribunal simply could not stomach facing the Irish public after spending over €45m on its own lawyers and confirm that it could not bring home the prosecution of the licence process. The new theory that it has presented in its final report finds no basis in evidence or in fact.
I won’t put a tooth in it; the Tribunal’s opinions in relation to the licence process are a simple combination of malicious falsehoods crudely stitched together and unleashed at a time and in a manner designed to cause the maximum impact. The Tribunal seemed to believe that it was more important to try to protect their own reputations than it was to deliver a report based on the evidence heard clearing the licence process despite their very best efforts. This Tribunal was determined that they would not be seen as an expensive failure. To justify the time and expense this Tribunal felt compelled to bring home the goods. I believe that in the publication of these opinions, Mr. Justice Michael Moriarty has done a gross disservice to the Irish Judicial system, to the Irish Civil service, to this House and to the Irish State. I will not apologise to anyone for saying so. He did not deliver his report as a High Court Judge and I am not obliged to treat the report as the outcome of a Court process. This report has no legal standing and I am not going to respect it as though it has. I believe that in the fullness of time, the flawed logic and prejudiced reasoning permeating this biased report will be laid bare.
Let me share a few facts with this House. The Moriarty Tribunal heard sworn evidence over more than 180 sitting days since 2002. During this time it heard sworn evidence from:
- 17 respected serving and retired Civil Servants from the Department of Communications and Department of Finance;
- 5 Government Ministers
- 2 Senior Officials from the Office of the Attorney General
- Mr. Richard Nesbit, Senior Counsel to the Irish State
- Professor Michael Andersen, the Internationally recognised expert consultant who designed and carried out the licence competition process.
Every single one of those people testified under oath that I did not interfere in any way with the licence process. In fact, not a single person gave evidence before this Tribunal since this began in 2002 to say that I interfered in the process in any way. That is a fact. How can the Members of this House accept that all of those persons wilfully gave false sworn evidence since 2002 to the Moriarty Tribunal?
The members of this House should think very carefully about supporting or endorsing any process which allows someone to be damned where no evidence exists to support this conclusion. Worse still, why should members of this House endorse a process where conclusions have been reached which completely fly in the face of all of the sworn evidence given. This sort of witch hunt or modern day version of the village stocks is what truly devalues democracy.
The new Tribunal theory contained in the Tribunal’s final report now goes along the lines of the following:
(a) That I managed to get information about the licence process from the civil servants involved which I passed on to Denis O’Brien and which somehow in a vague way assisted Esat Digifone;
(b) That I abruptly brought down a guillotine on the process once I learned Esat Digifone was in the lead; and
(c) That I railroaded the decision through my colleagues in Government and prevented proper scrutiny of the result taking place
Mr. Moriarty is a great man to coin a media friendly phrase designed to grab a headline. In this instance “Michael Lowry delivered the licence” to Denis O’Brien was his sprinkling of gold dust designed to liven up his final report. It is extraordinary that this damnation formula never appeared in his draft findings issued to me in 2008. However as I outlined previously, that draft report needed drastic surgery once the civil servants started to front up to him. The subsequent evidence which the Tribunal was forced to accept blew the Tribunal’s original license theory out of the water.
Rather than accepting what all of the evidence told him and fold his tent on the licence, Michael Moriarty just brought the draft report back to his workshop in Dublin Castle and built a new model from the ground up. He kept this new model under wraps and unveiled it last Tuesday morning. It wasn’t nearly as substantive as the old one; nor did it have all the bells and whistles but he knew that with a few media friendly sound bites thrown in, no one outside of the immediate interested parties would be any the wiser. The new Moriarty Tribunal model wasn’t road tested, it wasn’t remotely roadworthy, but he polished it up and drove it triumphantly out of the Castle and down to this House for a grand show.
Let me be abundantly clear. All of this about me “delivering a licence” is complete nonsense. None of this forms any basis in fact or evidence. I simply do not have the time available to me in this House today to detail the actual evidence given to the Tribunal in relation to each of these matters that the Tribunal has stitched together into a fabric of threadbare opinion. What I can say today with absolute confidence is that none of these elements are supported by any evidence given to the Tribunal. None of it is true. It is prejudiced theory and biased logic masquerading as reasoned opinion. It is impossible to locate the actual evidence on what any of this could be based.
This suggestion that I railroaded this decision through Government and somehow deceived my cabinet colleagues is particularly galling. This allegation is wholly without substance and defies common sense and logic. Does anyone here in this House reasonably think that the Cabinet would have countermanded the clear and unequivocal result arrived out by a large team of senior civil servants drawn from two Departments who were working closely for 9 months with a large team of expert international telecoms consultants?
This allegation falls on its backside no matter what angle you look at it from. The reality is that once Michael Moriarty’s original draft report was torn to shreds, he needed something to hang his hat on. He hung it here. Again, he did so in the face of all of the relevant evidence given to the Tribunal by the Civil Servants and political witnesses involved.
After I read this finding I contacted Mr. John Loughrey, former Secretary General of the Department of Communications. Mr. Loughrey is very well known to many members of this House. His integrity and service to this country is beyond reproach. Mr. Loughrey confirmed to me without reservation that the procedure that was followed in terms of having the decision approved by Government was completely above board, proper and fully in accordance with Government procedure. This is what Mr. Loughrey confirmed unequivocally in his evidence to the Tribunal. The Tribunal simply rejected his evidence without any basis for doing so. Mr. Loughrey has told me that considers this to be an outrageous finding with no validity.
In addition to this, the Tribunal floated a new allegation and one that never featured in any draft report – this is the suggestion that I planted a rumour about a certain politician having a “nest-egg” associated with the Persona consortium. This is a deliberate fabrication of the situation that existed and the evidence that was given to the Tribunal. This slanted invention was included in this report in a desperate effort to legitimise the new theory being advanced by the Tribunal. I reject this allegation vehemently. The evidence that was given was that at the time this process commenced, there was a belief or understanding in the international telecoms community that the second mobile phone licence was a done deal and that Motorola were a certainty to receive this. Indeed, there was some evidence before the Tribunal that Motorola themselves seemed to believe as much. When I was appointed as Minister, I was informed by Officials in my Department that it would be necessary to approach the major international telecom players and advise them that this was not the case and that the competition would be conducted on an open basis with the best bid securing the licence. Department Officials actively engaged in this exercise and counteracted the international perception at that time that the second licence was a foregone conclusion. It is astounding that Mr. Moriarty managed to mangle this evidence into an opinion that I was responsible for instigating and spreading a malicious rumour. He clearly felt that such an opinion would add credibility to his efforts to stick condemnation on me.
My primary task as Minister was to find a mobile operator that would compete effectively with Telecom Eireann. This new operator would open up the Irish telecommunications market and bring the benefits of competition to the Irish consumer. That was the Government’s policy objective entrusted to me and my Department as Minister. We were extraordinarily successful in achieving that objective. I would salute Mr. Denis O’Brien and the rest of his colleagues in Esat Digifone on fulfilling the policy objectives and delivering on all of the licence contract obligations and commitments. My over-riding concern was that we would need to find a competitor that would be able to stand up and compete effectively with the monopoly giant that was Telecom Eireann. The Esat Digifone team exceeded every condition and milestone that was set. They were a revelation in the Irish marketplace. The goals that the Government and I as Minister set for itself in this process were all achieved with spectacular success.
One of the great ironies of the Moriarty Tribunal is that the decision being inquired into was an enormous success from the point of view of the Irish Government and the Irish people. It would seem that only successful Government decisions are worthy of a 14 year inquiry.
Let my words ring loud and clear throughout this chamber. I did not interfere in any way in the second mobile phone licence process. There was no preferential treatment afforded to Esat Digifone by me or by anyone else involved in that process. The best applicant was the one that succeeded.
This is what years of evidence from dozens of witnesses has confirmed without any doubt. The Tribunals report is nothing more than a collection of unproven slurs, allegations and supposition. The members of this House should concern themselves with facts and evidence. No citizen of this country deserves to have their reputations destroyed on the basis of unproven allegations. If we truly believe in a democracy; if we truly believe in the ideals of a Republic and what our Constitution says about this State’s duty to protect the reputation of all of its citizens, then we should demand a far higher standard than what was delivered to this House last week by the Moriarty Tribunal. No one should be damned on groundless opinion and in the face of all of the sworn evidence provided.
I also want to deal with the opinions voiced by the Moriarty Tribunal about “attempted corruption” on my part in relation to a matter involving Ben Dunne and Mark Fitzgerald. This opinion, really more than any other, astounded me in its brazenness and vindictiveness. I would like to point out that, contrary to many media reports, the Tribunal did not say that I was guilty of corruption. The Tribunal has no power to make such findings in any event; this much is abundantly clear from decisions of the Supreme Court. It is more of a slur than an actual finding of any substance. This was another sprinkling of Michael Moriarty’s gold dust designed to give the report legs in the media.
I was absolutely open to the Tribunal in my evidence that I did raise the matter of a rent review arbitration with Mr. Mark Fitzgerald. The purpose of my speaking to him was to see if the saga could be advanced; I had been told by Ben Dunne that he was frustrated with the huge delays that had occurred in addressing the arbitration. I absolutely reject any suggestion that I sought to in any way influence the outcome of the arbitration; which is what the Moriarty Tribunal has wildly alleged. Again, this opinion does not stand up to objective scrutiny when the evidence available to the Tribunal is taken into consideration. The Tribunal’s approach here is the same approach that it has taken throughout its report. It looks at a set of circumstances and issued opinions which present the worst possible scenario. I inquired with Mark Fitzgerald to see if the process could be pushed along. That is what happened. The Tribunal finds that I tried to have Mark Fitzgerald fix the outcome of the process through a business partner of his. The Members of his House are well enough versed in politics and business (and indeed the personalities involved) to know that there is no reality to this opinion or suggestion. I did not seek to engage in any corrupt act to benefit Ben Dunne.
The Moriarty Tribunal’s findings in this matter are based entirely on the evidence of Mark Fitzgerald. I would point out to this House that Mr. Fitzgerald’s evidence to the Tribunal was flatly contested (on various matters by), Mr. Jim Mitchell (deceased), Mr. Phil Hogan, Mr. Colin McCrea, Mr. Jim Miley, Mr. Denis O’Brien and Mr. Ben Dunne. Mr. Fitzgerald found himself quite isolated in terms of his evidence before the Moriarty Tribunal but they embraced him wholeheartedly nonetheless. They liked what he had to say.
I wish to return to the suggestions that I received money from Mr. Denis O’Brien through 3 property transactions. Let me be crystal clear on this. I received no money from Denis O’Brien in relation to these matters or otherwise. No witness gave evidence to this Tribunal in the past decade supporting the Tribunal’s conclusions. The Tribunal’s opinions in these matters are therefore based entirely on circumstantial evidence and on unproven documents; many of which are of unknown or dubious origin.
Really what these opinions amount to are an approach by the Tribunal which says
“we don’t believe your sworn evidence here- we have here a piece of paper which seems to suggest something else. We don’t know where this piece of pare came from or who wrote it but it doesn’t look good for you so we’re running with it”.
Where documents are produced which flew in the face of the allegations being pursued by the Tribunal, these were discounted. Maybe 95% of the material before the Tribunal on a given issue would not support the Tribunal’s view of the world, but if they could just get maybe 5% that could be interpreted their way, then it is this 5% which becomes Gospel. All else gets cast aside.
There was also a very strong thread of Duirt bean liom go nduirt bean lei in all of this. Hearsay cannot be used in a Court process. Before a Tribunal, hearsay is allowed. Hearsay became the glue that brought the Moriarty Tribunal’s report into alleged payments together. Let me deal with the Tribunal’s findings about alleged payments in terms of facts.
I received a loan of IR₤147,000 from a long time personal friend, Mr. David Austin, in late 1996 to refurbish a property I had bought in Dublin. Mr. Austin deceased, would be known to many members of this House as a man of honour and integrity. I repaid that loan (with interest) to him a short few months later. I provided clear documentary evidence of this loan agreement to the Tribunal. The Tribunal simply rejected this evidence. Mrs. Austin’s widow gave evidence to the Tribunal to say that she was aware her late Husband was providing finance to assist me with that property. Again, the Tribunal just rejected this evidence from her. As ever, if the evidence does not accord with the allegations being made by the Tribunal, it was simply rejected.
What is abundantly clear is that I received no benefit whatsoever from this transaction. This was a loan; a loan which I repaid 14 years ago. I paid this loan back with interest in accordance with the terms of the agreement reached.
The Moriarty Tribunal went on to make findings about 2 property transactions that I was involved in the UK midlands well over a decade ago. In doing so, the Tribunal has put forward a story that does not accord with the facts. The Tribunal professes to follow a money trail and yet it does its best to conceal the actual money trail itself. These are the facts in relation to those two matters.
I paid Stg₤25,000 of my own money as a 10% deposit on a property in Mansfield 12 years ago. The property was a disused farm with development potential. Mr. Aidan Phelan provided the funds for the remaining 90% of the property. It was his money and he proved this to the Moriarty Tribunal. This was not Denis O’Brien’s money. This 90/10 joint venture arrangement was properly recorded in the appropriate legal documentation. To this day, I still hold 10% of that equity in that property. Far from making any money or receiving any benefit from Denis O’Brien or anyone else from an involvement in this disused farm in Mansfield, I have written off this property investment. I put in my own Stg₤25,000 for 10%. I never took any money out and the investment has proven to be unsuccessful.
The Tribunal has also made unfounded findings in relation to a Cheadle property. I intended to buy this property through a company. I made absolutely no secret of my involvement and was openly named as a Director of that Company along with my daughter Lorraine. My intended involvement was transparent and obvious.
This property was a small renovated Church Hall in the UK Midlands. I exited the proposed deal completely some 11 years ago. The opinion of the Tribunal is to the effect that a loan that was used to purchase the property was obtained through some direction on the part of Mr. Denis O’Brien with people he knew within Woodchester Bank. This is simply not true and does not stand up to scrutiny. The fact of the matter is that I never owned or had an equity interest in this property.
I had tried to purchase the property but was unable to complete and Mr. Aidan Phelan took over the Cheadle property purchase in its entirety. The property was sold and it was proven to the Tribunal that 100% of the sales proceeds were retained by Aidan Phelan; as he was the rightful owner of the property. I do not know how the Tribunal can reach an opinion that I received “a benefit” when the money trail confirms that I did not receive a penny out of the property in question.
It was proven to the Tribunal that I actually did not benefit from any of these transactions. There is no money trail ending up at my door. There is no pot of gold at the end of some rainbow in North Tipperary or anywhere else. The financial trail is actually far more mundane and unimpressive than the Tribunal would have everyone believe. Frankly, the evidence and the facts show that the so called money trail goes nowhere. However, opinions do not have to reflect the facts. Opinions can be infinitely more interesting and scandalous because opinions never have to be proven.
Every transaction in every bank account that I have had since 1986, either in my own name or in the name of my companies, were trawled through. I was able to account for every single transaction in every account. The same went for all accounts held by my late mother, my brothers, sister, and my children. I would ask the members of this House to reflect on the enormous level of intrusion that can be visited upon a citizen by a Tribunal of Inquiry. The pressure as brought to bear would have been too much for me had it not been for the kind support of my family, friends and my supporters. I owe them an enormous debt of gratitude.
This Tribunal report is a triumph of innuendo over evidence; a triumph of supposition over fact. I believe that it is truly a bad day for Ireland when citizens can be subjected to the incredible levels of ridicule and contempt that I and others have endured on the basis of unsubstantiated opinion. I have endured it with great strain but I refuse to buckle under it.
My conscience is clear. I do not accept Michael Moriarty’s baseless opinions and I will not apologise for something that I did not do. I have a life and a career to get back to and I intend to do so. I am certainly a little older and I would hope a little wiser for my experiences with the Moriarty Tribunal but I am still standing and I know that I still have a valuable and worthwhile contribution to make. I intend to make it.
I wish to advise that I have no intention of resigning my position as a democratically elected representative of this House. I will not walk away from the overwhelming mandate that was given to me by the constituents of North Tipperary/South Offaly.
I would also emphatically reject the sneering and snide references to “gombeen politics” and parish pump politics that seem to delight certain sections of the media. Contrary to what might be suggested in the media, the constituents of North Tipperary are every bit as intelligent and politically sophisticated as their counterparts anywhere else in the country. I am proud to serve them. I have performed my role as elected representative of the people of North Tipperary to the very best of my ability. I will continue to do so until they decide otherwise. I intend to take a short time to myself to rest my mind, heal my body and renew my spirit.
In conclusion I wish to state that the Moriarty Tribunal has not done the State some service. I believe that in the fullness of time, their contribution will be exposed for what it is; a scandal of truly epic proportions.