Master James Flynn

Just a few short years into the long-running Irish obsession with the tribunal of inquiry, one James Flynn, in his role as Taxing Master of the High Court, caused a volcanic eruption of sanctimony in Irish politics. Awarding costs to the Haughey family for their legal expenses in challenging some decisions of the Moriarty Tribunal, Master Flynn described tribunals as ‘Frankenstein monsters’ and ‘Star Chambers’.

The leader of the Progressive Democrats, Mary Harney, in her capacity as Tánaiste and Minister for Enterprise, Trade and Employment, declared the comments ‘clearly offensive’ to the Oireachtas and judges presiding over tribunals. The Attorney General, Michael McDowell, conveyed the government’s ‘deep concern’ to the President of the High Court. Master Flynn was pistol-whipped to his knees and compelled to utter an abject apology.

At the time, some people thought Master Flynn might have a point. As the Moriarty and Flood tribunals meandered on, and the Irish people muttered into their pints and cappuccinos about the costs to the public purse and the dizzying enrichment of leading members of the legal profession, it seemed not improbable that the nation might yet come round to something along the same view. Little did anyone know then that the tribunal farce was really only beginning.

Notwithstanding Master Flynn’s observations, it was stretching credulity somewhat when, some years later, the businessman Denis O’Brien emerged to complain that the Moriarty Tribunal was trying to stitch him up. O’Brien and the former Fine Gael communications minister Michael Lowry stood accused of having readied-up the 1995 process for allocating the second national mobile phone licence, controversially awarded to O’Brien’s company, Esat Digifone.

O’Brien protested to anyone who would listen, and many who would not, that Moriarty had made up his mind on the issue before his deliberations began. The public vacillated between half-supporting the tribunal and half-believing O’Brien. This was this widespread strange doublethink whereby it was permissible to grumble about the lawyers’ fees and the slowness of the process, and yet not to consider that any deeper criticisms might be valid. Many people thought O’Brien was engaging in a PR stunt to prepare the public mood for the worst when Moriarty delivered his final report. But more than a few were impressed by the vehemence with which he made the case for his innocence of any wrongdoing.

Several times, as the apparatus of the tribunal lurched and creaked its way to a final conclusion, Justice Moriarty was forced to acknowledge significant errors in his preliminary findings. With the investigations coming to a close in 2010, it seemed likely that, arising from the evidence of a Danish consultant called Michael Anderson, the tribunal might be in serious difficulty. Anderson had radically challenged some of Moriarty’s key preliminary findings. And, since Anderson had been a key observer and overseer of the licensing process, it was difficult to see how his evidence could be circumvented.

In March 2011, the Moriarty Tribunal at last delivered its final report. It had been 14 years in gestation and, depending on which figures you adopted, had cost something between €150 million and €300 million.

The tribunal report told the Irish people, albeit at considerably more length (more than 2,400 pages) that, well, we know what we know. Lowry and O’Brien were deemed guilty as charged. In substantiation of its allegedly damning central conclusion in respect of the most serious charge it had to deal with – that the 1995 awarding of the country’s second mobile phone licence to Esat Digifone resulted from an intervention by Michael Lowry – the report suspended a flimsy thread of logic between public prejudice and the known circumstances, padding out its case with rhetoric and speculation. The report got around the seemingly intractable difficulty of Michael Anderson’s evidence by the simple process of ignoring it.

The report’s conclusions were in many instances no more than the tabulation of suppositions and suspicions, assembled, often selectively and tendentiously, as though with a view to seeking a successful prosecution. It was not really a judgment – more like the opening statement of the prosecution in the court of public opinion.

The centrepiece of Moriarty’s logic was an interpretation of what had occurred at a meeting between Lowry and O’Brien in Hartigan’s public house on Leeson Street, Dublin, on 17 September 1995. Both men denied they had discussed Esat Digifone’s licence application in that meeting, but the tribunal decided that they must have done, so therefore they did. In this complex edifice of contention, there was a discernible tent-pole reliance on the somewhat dubious reputation of Michael Lowry, who had previously been caught out in tax evasion and other matters.

The Moriarty Report, however, plopped readily into a condition of public opinion which had latterly become rampant with rage on account of a general sense that politicians, bankers and business people were all ‘at it’ and that, therefore, any allegation of graft or corruption was likely to be true. Moriarty and his report were guaranteed an easy passage in the court of public opinion, which was prepared to overlook all previous reservations about tribunals now that another pair of targets had been dragged to the stocks.

In terms of general public attitudes to tribunals, this outcome was somewhat against the run of play. Some months earlier, the Supreme Court had issued a strong reprimand to the former chairman of another long-running tribunal, Mr Justice Flood, on account of his selective editing of the evidence of a key witness, James Gogarty. Overturning Flood’s decision to disallow the costs of two businessmen, one of the judges said that Flood had concealed ‘without justification’ important evidence relating to Gogarty’s credibility. ‘It is chilling’, Mr Justice Hardiman said, ‘to reflect that a poorer person, treated in the same fashion by the tribunal, could not have afforded to seek this vindication’.

A decade before, James Gogarty, since deceased, had been a national hero – the cantankerous old whistle-blower who would come to claim the scalp of a former government minister, Mr Raphael Burke, jailed in 2005 for tax evasion. In return for his testimony to the Flood Tribunal, the State gave Gogarty indemnity from prosecution and paid his legal costs. Burke memorably called Gogarty ‘an assassin in the middle of the night’. Gogarty retorted: ‘I’ve been insulted by experts and this guy doesn’t rate.’

In a strange and incongruous way, the tribunals seem to have gone hand-in-glove with the mentality of the Celtic Tiger. Most of them were established towards the end of the 1990s, partly as the result of pressure arising from various revelations suggesting corruption by politicians and others. For a decade and a half, the tribunals created vast amounts of material for journalists and mimics who relayed the proceedings to a nation increasingly in the grip of self-satisfaction. It was a pantomime to accompany the hubris of sham prosperity.

The very existence of the tribunals in the boom years suggested also that Ireland was doing something radical about corruption. Few remarked on the inconvenient circumstance that Fianna Fáil, the party most likely to come under scrutiny in this connection, had readily agreed to the tribunal mechanism. One way of describing what happened is to say that Flood, Moriarty et al. enabled Fianna Fáil to continue in office for those fourteen disastrous years between 1997 and 2011 by functioning as lightning rods for any inconvenient allegations that might crop up along the way. The standard mantra, ‘It’s a matter for the tribunal’, enabled any potentially damaging accusations to be rendered safely to earth.

The tribunal of inquiry, in other words, was Irish society’s greatest discovery of the 1990s, a perfect device for media and for the new breed of politician to carry on the various kinds of pretences that enabled public opinion to be appeased while business continued pretty much as usual. Tribunalism allowed us to dig up the past in a selective way, so as to dramatize our imagined ‘progress’ without admitting what was really at the root of our collective ill-health. Just as it suited Fianna Fáil and its various junior partners to have the tribunals acting as a kind of sin-bin for inconvenient questions about political chicanery, it suited the society as a whole to create the impression that the war against corruption was being waged without fear or favour. Meanwhile, the bankers and developers got down to making some serious hay.

As the whole charade drew to an ignominious conclusion, it became increasingly clear that the only real benefit of the tribunals was bestowed on lawyers, who received fantastic sums of taxpayers’ money to create enough hot air to send a balloon to the moon. The alleged ‘money trail’ in the phone licence saga – the amount of money allegedly paid to Lowry by O’Brien – was about €550,000, or 2 per cent of the amount earned by the top three senior counsel working for the Moriarty Tribunal.

The mechanism whereby the retraction was extracted from Master James Flynn was instructive in its orchestration. Key players with vested interests immediately began whipping up pressure for sanctions. Politicians like Mary Harney and Michael McDowell, who had come to power by accusing others of moral failings, made solemn statements of their concern. Attacks were launched by journalists, whom tribunals have made into stars. Once it was announced that the Attorney General had conveyed the government’s ‘deep concern’ to the President of the High Court, Master Flynn’s climb-down or removal was a matter of time. In the end, he capitulated and apologized, and the veil once again fell down on one of the truly great scandals of Irish life.

It was inevitable, given the set-up he was fingering, that Master James Flynn would be made to eat crow. If his remarks were allowed to stand, other public servants might take to speaking their minds, and the public might have been enabled to see behind the veil of bullshit that protects the true nature of political processes.

He should have stood his ground, should Master Flynn, for few things that have been said in the recent history of Irish public life were as correct and as perspicacious as those remarks of his about Frankenstein monsters and Star Chambers. Had we allowed ourselves to listen to and act upon his analysis, we might not have become quite as distracted as we did with our own smug sense of probity, and might have seen the real tsunami coming before it swept all our self-satisfaction away.