I thank you for your correspondence and invite to attend an evidence session on 23 September 2015. I, of course, firstly wish to confirm my attendance on this date.
I followed, with great interest, the debate on 16 September 2015 during the committee about the subject of how evidence would be provided. Therefore my response comes from a position of knowledge of the various positions taken by members of the committee.
I must place on record my belief that the proposal brought forward by Judith Cochrane MLA is one which not only damages the integrity, transparency and openness of the committee but furthermore is one which creates a hierarchy of witnesses and ensures that rather than there being equality of witnesses, there will effectively be inequality by virtue of the fact that it appears witnesses will be judged to different thresholds, when it comes to deciding whether to hear evidence in open or closed session.
I wish to highlight a number of points and will do so in numerical format, for ease of reference.
1. The new ‘criteria’ laid down by Judith Cochrane MLA’s proposal is ambiguous, open ended and sets no clear parameters whereby where the “direct link” threshold starts, and subsequently ends. I believe, to be frank, that this may have been the intention and therefore this effectively provides a catch all political safety mechanism which will essentially allow the committee to force into closed session any witness which they feel may be politically inconvenient. I stress that this approach appears to have been contrived by a number of committee members, and was opposed by others who spoke up for the importance of maintaining the transparency and openness of the democratic proceedings. In absence of any clear threshold, I submit that it falls to the committee to proceed in the normal established way, and that is with a public session.
2. I, like Gareth Graham, answered an open call put out by the committee for members of the public to come forward. At this stage neither Judith Cochrane MLA nor the committee raised any concerns or proposals to create a hierarchy of witnesses. These proposals came forward only after particular members of the committee had exhausted every other avenue in their attempts to prevent me giving evidence. Mr Graham was not asked to jump through hoops or set as high a bar as I have been, when it comes to providing his evidence in a public forum. This makes very clear that certain members of the committee wish to judge individuals not upon what evidence they may provide, but rather who they are or how politically inconvenient their evidence may be. This brings the entire committee, and the democratic process, into disrepute and given that the Stormont institutions regularly wax lyrical about the need to ensure all citizens are treated with equality by the democratic process, it is somewhat disappointing that this committee, at the behest of a number of members, would seek to create an inequality in how members of the public are dealt with. My approach and evidence is no different to Mr Graham, and the continuing moving of the goal-posts and the lack of clearly defined criteria within Judith Cochrane MLA’s proposal, ensures that whilst Mr Graham was treated one way, that I- and indeed DFM Martin McGuiness- and any witnesses that may follow us- are treated differently.
3. Continued reference has been made by a number of committee members to “prejudicing a court case.” Firstly I point out that there is no criminal court case ongoing to prejudice, and no charges brought, in relation to the sale of Nama Northern Ireland loan portfolio. The only court case is a civil financial dispute about the handling of Gareth Grahams companies. I fail to see how I, in any way, could prejudice this case. Therefore the continued reference to “prejudicing a court case” is simply nothing more than a fig leaf, for some to hide behind. I remind the committee that for example, the DUP and of course the Alliance party went onto Television and regularly spoke in the public domain in relation to Pastor James McConnell’s comments. At this stage his comments were “under police investigation”, yet this did not prevent a full blown public discussion on the matter with the DUP and the Alliance among the most vocal. There was no such concern for prejudicing a possible future criminal trial then. Furthermore, since the charges have actually been brought and there is a live criminal case against Pastor McConnell, the DUP have provided a running commentary. So if we are to follow the logical trajectory of some arguments put forward by some on the committee, particularly the DUP and the Alliance party, then no member of the public can ever speak about any matter which may at some point in the future become criminal proceedings. This of course is even more comical given the fact that the Stormont institutions are on the brink due to discussions around the murder of Kevin McGuigan, which is of course an ongoing police investigation. Many political parties have no issue commenting on the ongoing murder investigation, but seek to hide behind the fig leaf of an “ongoing investigation” to suit their own political agenda in relation to NAMA. To further continue to follow the trajectory of the argument articulated by some on the committee, then if any matter is under police investigation, prior to any charges being brought, then the media should not be allowed to report on any issue at all which is “under police investigation”. This is of course would create the bizarre situation whereby if someone wished to effectively muzzle the public, parliament or gain an injunction via the back door to cover something up- the mere one line “the PSNI are investigating” would do this for them. It should be noted that the PSNI are duty bound to investigate all complaints. What would it do to a ‘free press’ if they were restricted from writing about investigations before a single person has even been arrested? I am sure I do not need to go any further to draw the committees attention to the potential for the minefield of utterly farcical situations that would occur, not to mention the freeze that would be put on democracy, free speech and the free press as we know it, if we were to follow the logical trajectory of the arguments put forward by some committee members.
4. The committee’s proposal allows for “redactions” of any evidence in closed session. How would these redactions work and to what threshold would they be judged? The committee have legal privilege, so to follow the suggestion, within the proposal, the committee would have to ask legal services to redact the transcript on the basis of pretending they do not have privilege and then bring the redacted text before the committee whereby there will be a vote upon whether to release it into the public domain, or how much of it to release. This of course will naturally lead to politicians deciding, via a vote, what is convenient to enter the public domain and what is not. This is about as far removed from transparent democracy as one could possibly imagine. Essentially the committee will be subverting their own privilege and allowing parties which may have a political interest in what goes in to the public domain, and what doesn’t, an opportunity to influence what the public can see. Again, I am quite sure I do not need to expand further for the committee to see the minefield that this creates and how it clearly flies in the face of the transparent democratic process, not least that of a scrutiny committee. It is also wide open to a Judicial review as I am not convinced that the committee have the power to take such a decision to subvert their own privilege.
5. This inquiry by the committee was sparked by third-party allegations, made under privilege in a different jurisdiction. There were no concerns about initiating the inquiry on the basis of the genesis of this information, yet when a particular member of the public has answered an open call to provide information and evidence to the committee, all of a sudden there is a great concern around a “direct link”. The public will be able make their own mind up about the clear contradiction in this approach.
6. I have primary documentation- to provide examples; documents relating to the Millmount site, which is within the terms of reference due to the DUP lobbying of Nama in relation to this site. I have accounts and statements showing how particular property developers received favourable deals from Cerberus. I have documents that demonstrate a link between those directly involved and others, which in turn shows a clear conflict of interest in relation to the sale of NI Nama loan portfolio. This is all primary documentation that proves I have a direct link to those involved in this nefarious scheme. I have had as much contact with those directly involved in Nama as Gareth Graham and Martin McGuinness. Let’s remember Mr McGuinness’s only contact was a courtesy meeting from which he tweeted a photograph of his attendance, he played no direct role in the deal, therefore if we are to follow the skewed and ambiguous parameters laid out by Judith Cochrane’s proposal, and try to find some kind of balance or clarity within it- however difficult that may be- then I submit that I have, by virtue of primary documents alone, met the criteria every bit as much as Martin McGuinness and furthermore if in some bizarre manner the recently contrived threshold for a public session was to be retrospectively applied to Gareth Graham, then he too would find himself at exactly the same point as myself and Mr McGuinness. I submit that whatever threshold is being applied by the committee, and I must say, with respect, it is about as clear as mud- then it should be applied equally and given that I have demonstrated a primary link to areas within the terms of reference I should be dealt with in exactly the same manner as the Deputy First Minister. The committee cannot shift the goalposts based upon political considerations- I deserve, and I am sure the Deputy First Minister would agree- to be treated equally to him when it comes to how the committee hear my evidence. This of course goes to the core of every man being equal under the law, and equally subject to the law.
7. I noted the proposal by Judith Cochrane MLA whereby it was suggested that witnesses could- in confidence- reveal their sources to the committee. I treat this suggestion with total and utter contempt. Even the highest courts in the land have consistently protected whistle-blowers and journalists right to protect their sources. Even in a murder trial connected to the death of two British Soldiers at Masserene, the highest courts in this jurisdiction upheld the right of a journalist to protect their source. The Judge did not for one minute suggest that the journalist- bearing in mind this was a murder investigation of two British soldiers- come to his chambers in confidence and tell them their source. Yet Judith Cochrane MLA proposed that the threshold for appearing in public could be that witnesses reveal their sources to the DFP committee prior to the hearing. Once again this ill-thought out and utterly ridiculous suggestion gives no consideration to the minefield it could open up. Do journalists now have to reveal their sources before Parliamentary inquiries? Should Police officers have to reveal the names of informants, in confidence of course? Is that what Judith Cochrane MLA is proposing? Because that is the logical trajectory of that particular proposal.
8. As was highlighted by Mr O’Muilleoir in the September 16 2015 DFP committee meeting, I have consistently released information into the public domain prior to any of the mainstream media outlets or the organisations themselves involved. The information has then been proven to be accurate when followed up by the mainstream media. I remind the committee that I revealed the link to Millmount and the lobbying that was undertaken, the mainstream media confirmed this days after and indeed this very committee followed up on Millmount and discovered that indeed there was were valid questions around that particular site. I revealed the activities of Jefferies loan core and I revealed the refinancing deals of Paddy Kearney, Adam Armstrong and Noel Murphy a full week before it reached the public domain and was confirmed as true by the BBC. This, clearly, demonstrates that either I have a remarkable ability to pluck eerily accurate stories from my imagination or else I have primary knowledge of Nama and the continued activities of Cerberus. With all due respect, I have for a large chunk of this scandal revealed details well in advance of the mainstream media or any other outlet. It is up for the committee to decide whether I have mythical powers or whether indeed the fact I have demonstrated, by my ability to release such accurate information, that I have a direct link with persons intricately involved.
I believe that the above eight points not only demonstrates a primary information link but further to this shines a light on the contradictions, potential minefields and not least the totally oppressive trajectory of the proposal to hold evidence within closed session. One must bear in mind that Jim Wells MLA, on behalf the DUP, had suggested a closed hearing, without any transcript or recording. That this would even be seriously suggested in any civilised democratic society gives a chilling example of the threat to freedom and democracy that exists when politicians are given a free reign to suppress free speech and “bury” information that may not be politically convenient.
I must place on record that I have been heartened and mightily impressed by the diligence of yourself in the Chair and your desire to ensure transparency and equality for witnesses, regardless of who they are or what their political affiliations are. You have been ably supported in these attempts to ensure openness and fairness by Leslie Cree, Dominic Bradley and your colleagues from Sinn Fein. I must give credit where it is due.
I again reiterate that, as Chair, you will have my full respect and that I will follow your guidance at all times. There will be no wild allegations or straying away from the Terms of reference by me. To do so would only play into the hands of those who wish make my appearance before the committee controversial, in order that they can muddy the waters around my evidence. My evidence will be clear, concise and within the committee’s terms of reference at all times. And as I have already alluded to, I will respect the guidance from the Chair throughout. I will provide an extremely comprehensive presentation of evidence and furnish each of the committee members with supporting documents.
This is a huge test of the DFP scrutiny committee. The information will be placed into the public domain on Wednesday one way or another, so attempts by some on the committee to suppress it or lock it away for a period of weeks or months is utterly fruitless. All a closed session will serve to do is bring the committee, and the democratic political institutions, into disrepute.
Finally, I wish to inform the committee that I will be releasing this correspondence into the public domain due to the act I have an undertaking to do so at the start of this process. Given the public concerns already raised about the potential to shut down evidence, I wish to ensure my correspondence is as transparent as possible.
I once again thank those on the committee who voted to hear my evidence and I look forward to appearing on Wednesday and providing information and evidence, in a respectful manner within the terms of reference, on a matter of great public interest. This is a political scandal of epic proportions and to allow politicians- particularly those linked to parties involved in this scandal- a say over how much the public are allowed to hear, would do a great disservice to politics and democracy in general.