ANALYSIS:An 'appalling vista' was raised during the course of yesterday's hearing
THERE WAS a sense of the tribunal’s mammoth mobile phone licence inquiry being on the ropes yesterday.
The lead consultant to the 1995 competition that was won by Denis O’Brien’s Esat Digifone, Danish expert Michael Andersen, has come out fully in support of the competition’s outcome.
Andersen’s evidence since Monday of last week has emphasised his knowledge of the competition and the depth of his engagement with it.
It is hard to see how the competition could have been interfered with by the then communications minister Michael Lowry without Andersen noticing, and his clear evidence is that Esat won fair and square.
Former attorney general Michael McDowell SC, for the tribunal, has not sought to question Andersen’s honesty, and an inference that can be drawn is that Andersen’s evidence is accepted.
Andersen could have given evidence years ago, but developed the view in 2002 that the tribunal legal team had a preconceived view that Esat should not have won the competition. He called the chairman’s confidential 2008 preliminary findings a “culmination of bias”.
His evidence raises the prospect that the most valuable potential witness for the competition inquiry shied away from coming to give evidence because he felt the tribunal legal team had a bias. Efforts to enlighten them as to mistakes he believed they were making met with hostility, he said.
Yesterday, the chairman said he was not allowing counsel for parties before the tribunal, other than Andersen’s own counsel, explore the consultant’s dealings with the tribunal team.
His reasons had to do with not being a judge in his own cause, the chairman said.
The tribunal has already heard evidence from officials in the Attorney General’s office about their private dealings with the tribunal. That evidence severely questioned one of the most serious of the chairman’s confidential preliminary findings.
Andersen’s evidence, if accepted, acutely questions another of the chairman’s most significant findings.
Bill Shipsey SC, for Esat shareholder Dermot Desmond, said Andersen’s position on his dealings with the tribunal calls into question the decision to hold the licence inquiry.
Andersen’s position “opens what you might describe as the appalling vista for you, sir, that it calls into question the decision taken, in 2002, to commence an inquiry in public into the award of the second GSM licence”.
In his response, Mr Justice Moriarty said the decision was “correct, bona fide and justifiable” on the basis of what was then known. The inquiry had to be conducted “in the public interest”.
Whatever about that, his final report will now inevitably involve a judgment by him on how that inquiry was conducted, in that acceptance of Andersen’s evidence calls into question the need for a whole slew of hugely expensive public hearings that have been held, and some very harsh and stark preliminary findings.
The report, whenever it may come, is likely to have shocking findings about other matters that have strong evidential support. The difficulty is that the trouble over the licence issue threatens to undermine the force of any final report. And the pressure the tribunal is under raises the prospect that no report will ever be published.
