Michael Lowry (Tipperary North, Independent)

I have three simple messages that I would like to leave with all Members of this House. The first is that I did not engage in any wrongdoing with regard to the awarding of the second mobile licence. That is a fact which is substantiated by every witness who gave evidence to the tribunal over a long period. The second point is that I received no payments from Denis O'Brien with regard to the second mobile licence. Not a single witness before the tribunal gave evidence that I did receive a payment. The third is that Mr. Justice Moriarty has created a false impression in his report that I was a net beneficiary of approximately £900,000 sterling arising from two property transactions and a loan agreement. This is not a truthful or accurate presentation of the facts. Absolutely no money accrued to me from the transactions referred to in his report. The trail of documentation, both legal and accounting, confirms the validity of that statement.

As everyone in this country is aware, my financial affairs, both personal and business, were the subject of intense scrutiny and investigation by the Revenue Commissioners. Last Friday, I contacted my professional advisers, and they reconfirmed to me that the three transactions referred to in the Moriarty report were covered under the period of investigation by the Revenue Commissioners. The Revenue Commissioners accepted that I had no income from these transactions and therefore I had no tax liability attached. It is extraordinary, therefore, that Mr. Justice Moriarty can give such a misleading impression to the Irish public. These are the three simple messages. That is the truth, and those are the facts.

Let me return to a number of issues that have been raised. Sixteen years ago I became the subject of investigation by the institutions of this State. I first went through the Buchanan inquiry. I was then passed on to the McCracken inquiry. Then I was the subject of an extensive investigation conducted by Mr. Appleby, who was the Director of Corporate Enforcement at the time. Then there was the prolonged investigation by the Revenue Commissioners, and I finished up for 14 years with the Moriarty tribunal. Constantly, every day for 16 years, I have been investigated by some institution of the State.

When this issue arose 16 years ago, I accepted responsibility and admitted mistakes in the manner in which I had conducted business with Ben Dunne. I took responsibility for that. I made a voluntary declaration and I went to the Revenue Commissioners and settled my affairs. As an individual, my total liability was €60,000, and my company had a further liability. Rather than passing the blame to somebody for the unorthodox way in which Ben Dunne did business, I settled my affairs. In settling those affairs, I paid in the region of €900,000 in penalties and interest on a bill of approximately €400,000. I remortgaged my house to fulfil my commitments and I paid what was owed. Like any other taxpayer, I settled my affairs and I expected to be able to walk on and leave that behind me. However, it has not happened that way.

Now that the Moriarty tribunal has concluded, I am again under further investigation by the Criminal Assets Bureau. I want to make one thing clear: you can send in the CAB, you can send in the Army, you can send in whom you like to investigate my affairs after all of these investigations, but no £900,000 will be found, because it was never there and it is not there.

The media have been gleeful in their anticipation that I might go to jail because I broke a tax amnesty. Every transaction I have ever had has been the subject of inquiry and investigation, and to facilitate the Revenue Commissioners in that investigation, I made my voluntary disclosure available to it. The amnesty, and my dealings with the Revenue Commissioners, were all open and on the table. It was in the context of the amnesty that my full and final settlement was made with the Revenue Commissioners in June 2007.

This House established the Moriarty tribunal 14 years ago. That has been, for me, 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 State a fortune. For an inquiry to go on for 14 years in a democratic society is absurd. Yet here I stand, 14 years on, nonetheless accused. There is no evidence to support the report's findings. Every witness questioned was absolutely clear that I did not influence the outcome of the mobile phone licence award in any way. Why was Mr. Justice Moriarty unwilling to believe or accept those testimonies from so many people under oath? Why is the tribunal happy to fabricate and invent the content of a conversation between me and Denis O'Brien in 1995 that never happened? Both of us confirmed that it never happened and nobody else was present to confirm otherwise. What is the legal basis or justification for such outrageous assumptions and findings?

John Waters, who has often been very critical of me, highlighted in last Friday's The Irish Times 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 puts the entire tribunal travesty into a perfect context. It was not about evidence, but assumptions; it was not about truth, but self-justification and media soundbites; it was not about legal jurisprudence, but witch-hunting and scapegoating. The tribunal was driven by forces and syndicates in this country whose vested interests, ambitions and greed were thwarted by a perfectly legitimate licence application procedure. During the prolonged inquiry, rumour and innuendo suddenly became fact, guilt by association became the norm, and 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 into an open-ended mandate without restraint. He has pursued this open-ended agenda with an unlimited budget and zero accountability to this House for the past 14 years. The ultimate outcome of this process is a report filled with intemperate language, one which is professionally inappropriate, has no evidentiary framework or merit and makes claims that would not stand up to scrutiny in the local pub, let alone an esteemed courtroom.

I have served as a Deputy for Tipperary North for 24 years and lived with this tribunal animal for 14. Not a single day passed when this tribunal did not negatively impact on my personal or professional life in some way or another. This slow Chinese torture has taken an enormous toll on me in every respect. This House established the tribunal. I believe I am entitled at least to a right of reply. I owe that to myself and my family.

Mr. Michael Moriarty has been proved wrong on several occasions and he is grievously wrong with the opinions he reported to the House last week. Members would do well to remember that thousands of court cases are successfully appealed, mainly because judges do get it wrong. 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 tested rules of evidence that the ultimate decisions of the court are respected, not because of the personality of the judge involved.

My position was completely vindicated by all of the sworn evidence given before the tribunal by dozens of witnesses during the years. Not one single person went into Dublin Castle to give sworn evidence that I had interfered in any way with the awarding of the second mobile phone licence. It was, in fact, the opposite. Not one single person went before the tribunal to claim I had received money from Denis O'Brien. No one gave evidence to the Moriarty tribunal in support of what is contained in its final report. Today we are debating the opinion of one man, not facts or evidence-based conclusions. No Member can forget that basic principle. The report is not based on evidence, but is the opinion of the tribunal's chairman.

The only parties involved in this entire process who disputed my principal positions were Michael Moriarty, his team of multimillionaire lawyers and certain members of 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 in the past week. Members must not forget that the stated goal and ambition of these parties is to sue the State for the highest possible amount of damages. Since 1995, they have sat back and let the tribunal, paid from State funds, to do all of the legwork in preparing damages actions against the State. It is bewildering. In 1996 I invited Persona to contest the licence decision before the courts. It, or any other losing applicant, will not succeed in its objective for compensation because there is no evidence to support a successful court challenge.

I always understood a tribunal was duty bound to reach conclusions based only on the sworn evidence provided for it in public sessions. Mr. Moriarty himself said he would do so in a ruling delivered in 1999. How then has it happened that he has reached these primary conclusions in his report when he did not obtain a single witness to support his theory of events in either the licence process 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 contained in his final report. What was reported was 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 that Mr. Moriarty would not actually be making findings of fact, that rather 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 nine years later the tribunal would announce it was only making a report based on opinions?

I challenge any Member of this House to find me an extract from the actual evidence given to the tribunal in 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 from which to work. If Members of this House wish to lazily parrot the words from the tribunal's report, as some have already done this evening, to secure some perceived political points, there is little I can do to stop them. Perhaps some of them could just dig a little deeper and see if there is evidence to back up these findings.

Less than four months ago The Sunday Tribune published the results of a comprehensive poll conducted among 129 sitting Deputies and Senators in which they were asked the simple question if they had confidence in the Moriarty tribunal. More than two thirds of those polled said, "No"; only one in five answered, "Yes". As part of its front page piece, the newspaper stated, "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." During the years many Members have gone on record openly criticising the operations of the Moriarty tribunal.

There has been much commentary in recent days and again tonight about attacks on the Judiciary and statements made about the deplorable nature of persons seeking to defend themselves against the damaging personalised opinions emanating from the Moriarty tribunal. I remind the House that the chairman of a tribunal does not sit as a High Court judge or as a member of the Judiciary. There is absolutely no requirement that the sole member of a tribunal needs to be a judge. It would be far better if these roles were never again confused in this way. Most of the time when it suits them, tribunals gladly take the position that they are not courts, yet they wish to avail of the cloak of protection of the Judiciary when justified criticism is aimed in their direction. Tribunals, particularly the Moriarty tribunal, do not provide any of the protections or standards to which a citizen would be entitled as a matter of right in a court of law.

It was the Moriarty tribunal that introduced the desperately low standard of the reasonably informed expression of opinion as the basis upon which it would arrive at its conclusions. Members need to give very serious consideration to whether this is an acceptable standard to be employed in such a serious process with such far-reaching consequences. Is it fair that career civil servants have had their personal and professional reputations shredded based on opinion where there is no evidence? This is what the Moriarty tribunal has done. Do these civil servants not deserve better?

One of the greatest flaws in the modern tribunal system is that while it looks like a court and has all the appearances, airs and graces of one, it provides the accused with absolutely none of the protections provided in a court. Neither is it obliged to follow the standards of law which are sacrosanct in a court or the rules of evidence or the procedures of a court. Mr. Moriarty speaks in innocuous tones of "relaxing" the rules of evidence. In my case, Mr. Moriarty threw the rules of evidence out the window. A tribunal is no more than a prosecution show trial that gets to operate without any of the checks and balances that are properly embedded in 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 citizens to properly defend themselves against.

I say to this Chamber without fear or hesitation that the chairman of this tribunal did not act with the detached independence 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? If that relationship happened in any other legal process, it would collapse 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. There are many legal people in this Chamber. There has been no commentary on it. 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. How would Members feel if they were to walk into a court tomorrow as a defendant to find that the prosecutor worked in the same office as the judge, discussed the case openly with him, and that they co-operated to prepare questions for the defendants? It seems crazy but this is what happened for the past 14 years at this tribunal.

The Moriarty tribunal 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 anyone who looked sideways at this tribunal over the past decade received withering criticism in the final report. Dozens and dozens of people get it right between the eyes in scornful and personalised comment in the tribunal's 2,000 pages. Anyone who gave evidence to this tribunal that conflicted with the case being put forward by the tribunal was attacked in this report. However, the tribunal's sensitivity is incredible in terms of any perceived criticism levelled against the chairman or any member of his legal team. The tribunal report devotes entire sections in its report to defending the honour and integrity of its team while shredding the reputations of others on a wholesale basis. If Mr. 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 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 that if the Moriarty tribunal was a criminal process, it would have collapsed under the weight of its own impropriety many years ago.

The rejection of the absolutely overwhelming body of evidence given in public sittings is the real story of this 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 heard before him under oath, but on a theory or opinion of events that he and his lawyers constructed. Indeed, when the first theory on the licence 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 that it refused to share with any of us involved in the process 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 on with his preferred story of how certain things happened 15 to 20 years ago. It tells a great story and he does not spare the verbose dramatic flourishes, but one has to scratch just a little beneath the surface to see the gaping cracks in the theory as put forward in these opinions.

In this context, I am fully entitled to voice my concerns about this flawed process in the 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 of every year for 14 years. They were handed this money to prepare and hone their attacks on me and others, 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.

The current Taoiseach repeatedly questioned his predecessor during his time as Leader of the Opposition in a manner that could only be described as giving voice to real, serious concerns about the Moriarty tribunal and its activities. The Taoiseach was joined by the leader of the Labour Party, now the Tánaiste, Deputy Eamon Gilmore and the then leader of Sinn Féin in the Oireachtas, Deputy Caoimhghín Ó Caoláin, who rowed in on numerous occasions to criticise the conduct, the time delays and other matters involved in the Moriarty tribunal. The Taoiseach was justified and correct in that questioning and criticism. As recently as May of last year, Deputy Kenny asked the then 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 the legal adviser to the State and to the Government advise on the legality of the change of ownership yet that did not emerge until quite recently?

Deputy Kenny went on to state trenchantly that what he described as "two grievous errors" had been sensationally uncovered in the approach adopted by the Moriarty tribunal. Deputy Kenny asked the Taoiseach if he believed that the sole member of the tribunal was in a position to produce a credible and impartial report and whether the then Taoiseach, Mr. Cowen, could have confidence in the Moriarty tribunal in light of the disclosures forced out of the tribunal.

At that time Deputy Kenny was undoubtedly supported in that position by his party colleagues who now make up the majority of the Government benches in this House. I will answer that question for Deputy Kenny now. The tribunal did not produce a credible and impartial report. The fears expressed in this House have proven to have been very well founded. Mr. Michael Moriarty and his team of lawyers have been wrong on many occasions.

On 25 February 2008, the tribunal published a written ruling on its website dealing with a critical matter concerning information it had received from the Office of the Attorney General. Two years later, it was forced to take down that ruling and post a new ruling that said precisely the opposite to what the tribunal had been informed by the Office of the Attorney General. 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. The tribunal pursued a line of inquiry with me in which it openly alleged that I was involved in a secret trust relating to Doncaster Rovers' property. It transpired through questions I asked of the tribunal counsel that the tribunal had already received conclusive evidence from the entity in the UK that I had absolutely nothing to do with that in any capacity. The chairman went on to say that this was an error.

In the course of sittings, the tribunal counsel denied meeting with officials from the Office of the Attorney General in Dublin in 2002 during which critical matters were discussed. Notes were then produced showing that tribunal counsel attended this critical meeting. That was again put down to error. Dr. Peter Bacon was retained by the tribunal in 2002 to prepare reports that were used to tear apart the second mobile phone licence process and to question civil servant witnesses for years. When the secret report and the relationship between Bacon and the tribunal was uncovered, the tribunal made a humiliating climbdown and ruled five years later that Peter Bacon was not an expert in the field and that it could not rely on the contents of the report. It was wrong again. In the meantime it had interrogated officials in the Department over a five year period on the basis of the secret report in the background.

Although he was forced publicly to admit to those errors, the chairman of the Moriarty tribunal has never properly explained those "significant errors". It is impossible to believe that they were simply errors. In the case of the involvement of the Office of the Attorney General in advising on the awarding of the licence, the impediments that were put in place by the tribunal to prevent the calling of evidence to unmask those 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 the threat of judicial review proceedings that the truth on the ownership issue was allowed to emerge publicly. Mr. Moriarty was proven wrong then and he is wrong now in his findings.

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 the critical ownership issue. As counsel for the State put it during a public sitting in 2009 - I was there to hear it and witness it - 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 rewired its predetermined conclusion that I was guilty of wrongdoing in relation to the licence process. It is accepted that grievous errors were previously made by the tribunal. It moved away from the ownership issue because it could not be brought home to roost. What Mr. Moriarty did then was move the goalpost and last week he unleashed on the public other conclusions which are not substantiated by fact.

Despite the consistent and trenchant criticisms levelled at the approach of the Moriarty tribunal by Members of this House, Mr. 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. As I noted in the past week, 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 the fact that he was proven wrong on so many matters in the past why is it that Mr. Moriarty's report on the licence process is being taken as 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. Since last Tuesday, the Moriarty tribunal report has been accepted and trumpeted by Members of this House as though it is gospel, as though every opinion and position contained in it is impervious to criticism or even a contrary view. As I know, politics can be a very fickle pursuit. A position taken today can be abandoned for a political advantage tomorrow. The approach in this House to the Moriarty tribunal is proof of that.

A fickle approach is certainly not unique to Members of this House. I have noticed in the 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 at. That is bizarre, considering that many of the same writers were the authors of some hugely critical analysis, particularly over the past two years. All of that 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. Moriarty issued his report from some throne of infallibility and that all doubts and concerns about his approach that were widely expressed in the media 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 €45 million bounty over 14 years is that they would be able to write a credible, factual and convincing report. The Moriarty tribunal's 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 it wanted, without interference from the other side, then of course it would read like a compelling and damning verdict to the public. That is exactly what I faced last Tuesday. The report was a completely one-sided, self-serving production designed to inflict as much damage as possible on those who opposed the tribunal while vigorously defending every step and action taken by the tribunal itself over the past decade.

This is my opportunity to say what I have to say. I do not have €45 million worth of legal advice and support. I know I will not get any 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 but 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 make absolutely no apology for that. The Moriarty tribunal 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 for 14 years and refuse to call a spade a spade.

The opinions expressed in this report have inflicted enormous damage on me. Much more important 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 has been maligned. Anyone who dared offer evidence or views which did not accord with the predetermined Moriarty tribunal theory has been denounced by the tribunal. The report which appeared last Tuesday was rough justice getting its finest hour. Last Tuesday was payback time, albeit of a different variety from that which the members of the previous 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. They are among some of the finest people that I have ever had the pleasure to encounter in my life. 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 Civil Service is something of which we can be proud. The Moriarty tribunal's report is, among other things, an assault on the honour and integrity of the Civil Service. The Moriarty tribunal is the first body in the history of the State to call into question the reputation of the Civil Service. Where does the House stand today when the reputations of many of this country's finest civil servants have been damned on nothing more than "opinions"? I urge the Members of this House to ask themselves if such an attack on the previously unblemished record of the Civil Service is merited. In November 2008, the Moriarty tribunal circulated what it called provisional findings; essentially it was its draft report in summary form. When I read it I was appalled. In this draft report the tribunal had found that numerous civil servants were "in thrall" to me and that, because of this, they had facilitated wrongdoing. The thrust of the tribunal's report at that time was that I made known my preferences to the project team through some nod and a wink and it busily set about delivering the result that I wanted. According to the tribunal, the supposed wrongdoing at that time was largely carried out by the Civil Service in line with what it knew was my desired general 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 … Telecommunications Section of the Department … 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 co-operation and collusion involving the Civil Service. In God's name, how could any Minister have the collaboration, co-operation and collusion of 17 civil servants from the Department of Finance and what was then my Department? It did not happen; it is a total nonsense.

The circulation of this draft report calling into question the role of the civil servants obviously 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 and from an eminent senior counsel, and further evidence from the Civil Service. The tribunal fought the calling of this new evidence tooth and nail. It did not want to call them or hear what they had to say.

However, when the evidence was called, it comprehensively dismantled the very basis of the tribunal's initial 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 the tribunal's draft report completely to shreds. The blueprint that the tribunal had assembled and which it was within weeks of publishing as a final report was totally blown out of the water. Many of the 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 by the journalists 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 in light of this additional evidence, the Moriarty tribunal's report would deem the licence free of any form of interference. I vividly recall the defeatist body language of the tribunal's legal team as witness after witness pummelled its theories relentlessly and left its draft report without a shred of credibility.

Professor Michael Andersen gave evidence and ran rings around our former esteemed colleague Mr. 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. Every theory that the tribunal had was comprehensively and decisively ripped asunder. Then the tribunal carried out the most cowardly act of all: it did not challenge him when he was in the witness box because it was simply unable or unwilling to do so. It refused and restricted questions interested parties wanted to ask him. It curtailed the time available and disallowed a whole sequence of questions that should probably have been put to Professor Andersen. It is insidious of the Chairman to reject the evidence of such a competent and professional witness in his final report.

Professor Michael Andersen is one of the world's leading experts in mobile telecommunication competitions processes. He acted in over 120 such competitions in over 50 countries around the world before he came to Ireland in 1995. One should remember that his advice, professionalism, standards and results were never challenged in that period in those countries. He was the only expert who testified in regard to the licence competition process in Ireland, yet the approach of the tribunal is to pretend he did not exist and that his evidence did not count.

I will quote just a few paragraphs of Professor Michael Andersen's sworn evidence to the tribunal:

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 [the then Minister] 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 GSM 2 process; such allegations being based on an apparent preference for the Esat Digifone application in that process […]. 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 […].

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 [in its view] 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.

15. Esat Digifone […] 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 members of the Tribunal's legal team between 2001 and 2003, it was suggested to me that Persona'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 [previous] 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.

See this speech in context