According to today's Sunday Business Post, former FG minister Michael Lowry was advised ‘‘not to drag his feet’’ in issuing the state’s second mobile phone licence to Denis O’Brien’s Esat consortium, according to a confidential Govt memo, which has remained undisclosed for more than a decade, came to light after communications minister Eamon Ryan told the Moriarty Tribunal that his department was withdrawing a claim of privilege over legal advice his predecessor received on the issue. It is not clear why the department claimed privilege over the letter in the first place, nor why this position has now been reversed.
However, given the importance of the contents of the memo, it seems highly suspicious and strongly suggests that
(a) a succession of FF-led Govts have deliberately withheld crucial information from the Tribunal in order to keep a prominent former FG politician in the “corruption frame”, to counterbalance the rogues gallery of very prominent FFers already there and
(b) that withholding this document has probably extended the work of the tribunal, and its large associated costs, by several years.
The memo in question detailed the advice given by Senior Counsel Richard Nesbitt in May 1996 to the Attorney General after he was asked to assess the implications of businessman Dermot Desmond taking a share in the Esat consortium. In the letter, written to communications department secretary John Loughrey, Nesbitt advised that delaying the issuing of the licence would ‘‘not achieve any end’’.
Nesbitt wrote that Lowry was caught ‘‘between two competing interests’’ - claims by Esat that it had fairly won preferred bidder status on merit, and Persona, a rival bidder, which argued that the licence should not be awarded to Esat. Nesbitt advised the minister that if the Motorola-backed Persona group took legal action against his ultimate decision to grant the licence to Esat, ‘‘so be it’’.
‘‘I remain of the view that the minister should not drag his feet in issuing the licence. If there was to be any litigation, so be it, but delaying does not achieve any end,” he wrote.
He went on to say that delaying would ‘‘clearly damage Esat’’ and, if Persona wanted to stop Esat getting the licence, it would have to take appropriate legal action.
‘‘They will then be required to give undertakings to the parties affected, particularly Esat. This will concentrate their minds, particularly in circumstances where the commission are likely to be making unsympathetic noises in relation to their complaint.”
The effect of this memo is to say that Lowry and his Dept officials were acting on best vailable legal advice when they granted the mobile phone licence to Esat. It's hard to believe that, had this memo, along with the supporting legal opinion from Nesbitt, been revealed to the tribunal at the earliest opportunity, this whole expensive saga would have ended many years ago.
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