Pat Rabbitte (Dublin South West, Labour)

Deputy Martin was incorrect in describing what was decided at Cabinet. Back in March 1995, the Cabinet decided, in accordance with best practice in Europe at the time, there ought to be a competition to decide this issue. The protocol that Deputy Martin thought applied at Cabinet on 2 March 1995 never happened. Once established, the project team, comprising the Departments of Finance and the then Department of Transport, Energy and Communications, decided on the protocol that ought to guide it in the decision.

The Cabinet decision to award the second GSM licence was in accordance with an aide-mémoire brought to the Cabinet a month earlier by Deputy Martin's former colleague and then Minister, Brian Cowen. He set out the framework and eight criteria that were subsequently used in the ranking for the competition. His ministerial successor did not see any reason to change these. The Cabinet agreed that, in accordance with practice across Europe at the time, there would be a competition. The project team came into being and through a tender process brought in consultants from outside, AMI, to advise it. They agreed the protocol that ought to apply.

There seems to be conflicting evidence as to whether this was supposed to be entirely ring-fenced from the Minister. On the last occasion, we dealt in some detail with the almost impossibility in practical terms of denying all interaction between civil servants and the Minister. The then Secretary General of the Department Transport, Energy and Communications, Mr. John Loughrey, subsequently used the phrase "hermetically sealed".

Deputy Martin is correct that it is the finding of the Moriarty tribunal that the seal of confidence was breached. However, most departmental officials, although most are now retired, believed this was an internal protocol to ring-fence the process from any outside interference or contact. Some of them would also have believed that if they answered a question from the Minister, it would not be a breach of the protocol.

It is important to remember a competition was established in accordance with best practice. It was a matter for that competition project group, having drawn up a protocol to guide it, to produce a successful bidder. It was the task of the Minister of the day to report this to the Cabinet. It was not the task of the Cabinet to second-guess it. I am amazed at the commentary outside and in the House during the debate that the Cabinet was somehow defective in the discharge of its duties by not second-guessing the reported outcome of the competition.

Instead, such an action would have been to undermine the entire process. The process was to ensure the Cabinet was not involved. Once the process was completed, it was to report who was the successful bidder. To have Ministers second-guessing that would only have been to invite representations from unsuccessful bidders and so forth. The quote that Deputy Martin relied on is nowhere in the report. The report is long enough without him adding some imaginary findings to it.

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