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Dublin: 13 °C Thursday 27 October, 2016

Lawyers grew fat on fees as the banking inquiry wasted our time and money

Political inquires are expensive spectacles set up by politicians trying to appear macho, Aaron McKenna writes.

Aaron McKenna

THE POLITICAL INQUIRY is to justice what soft drinks are to a session in the pub: Litre for litre they’re more expensive than what everyone else is having whilst providing comparatively little of the expected payoff.

The Oireachtas banking inquiry reached its rushed conclusion this week and told us precisely nothing we didn’t already know.

It took down onto official paper that which you could already read in several long printed books or various analysis pieces by Irish and international authors, and expanded the thoughts of some key actors into new strings of quotation.

It is the perfect example of what a waste of time, effort and taxpayer money that political inquiries are.

The banking inquiry seemed to expend more energy on threading a needle through the complex weave of legal and political considerations facing it than investigating the crisis itself.

Politicians have long called for more powers to conduct inquiries on the basis that they can produce results quickly and efficiently.

Though there is rare evidence from Irish political past and from foreign parliaments of political inquiries working, the form seems to be to produce more banking inquiries than truly effective and earth shattering documents.

Patchy prosecutors

At the outset, asking politicians to investigate complex matters is as good as asking a random pool of punters on Grafton Street.

There are highly intelligent people in the Oireachtas and who served on the banking inquiry, but as we see here and in committee rooms all through Leinster House, politicians are patchy prosecutors.

Their skillset and experience is often mismatched with either or both the topic under investigation or the requirements of running an effective inquiry.

Oireachtas banking inquiry Ciaran Lynch TD (centre) and members of the inquiry at Leinster House on Wednesday. Source: Brian Lawless/PA Wire/Press Association Images

We see this come through in the organisation of inquiries, the patchy quality of the questioning of witnesses and their logical capabilities to follow the evidence.

The banking inquiry, for example, failed to get the guy who ran the Central Bank’s stability unit from 2003 to 2010 in for questioning.

He later submitted a statement that was highly critical of the Central Bank management, but it was never really pinned on the senior managers to explain themselves.

Other witnesses ran rings around the wannabe prosecutors, and some of the political giants of the pre-crash era gave bullish accounts of themselves that more junior politicians were unable to properly challenge in the arena.

Politicians aren’t professional prosecutors and they aren’t subject matter experts. This puts them on the back foot from the off.

And that’s before you consider the environmental factors constraining a political inquiry: The biases and potential biases of the members, for example.

Even though the banking inquiry seems a fairly balanced report, the government fought for a majority on the panel which, from the off, gave some political participants of the crisis years an excuse to malign its fairness before a single witness was called.

A political inquiry cannot make findings in fact about people.

I think this is a power the Irish people were wise to refuse politicians in recent years, but it quite stymies any attempt to get to the bottom of what happened in the run up to the crash if you can’t point any fingers.

Similarly where the inquiry could make findings, it was so careful to avoid legal entanglements as to neuter many of them.

Oireachtas banking inquiry Former Fianna Fáil leader Brian Cowen arrives for his appearance at the inquiry. Source: Brian Lawless/PA Archive/PA Images

Imagine if you were going on trial for robbing a bank, but you could have your legal team tie up the opposing team and the judge and the jury in this way?

Oh, and the opposing team and the judge aren’t themselves legal professionals.

And the jury isn’t allowed to actually arrive at a finding anyway. Handy.

No legal weight

Sometimes politicians don’t try and carry out the inquiries themselves. They set up tribunals, instead.

Multi-year multi-million euro operations, they wind on and on interminably trying to get to the bottom of complex matters.

At least those trying to find the answers are professionals, who can bring in subject matter experts and aren’t forced to rush out their reports before an election is called.

Unfortunately, and this is the real kicker, the way that politicians set up tribunals specifically means that their reports carry no real legal weight.

The judges running tribunals can, after a decade or more of deliberation, say that you did indeed rob that bank.

Unfortunately, this finding cannot itself be used to convict you of robbing a bank.

Instead, the police and public prosecutors will have to go back and start a completely new investigation, run over precisely the same ground as the tribunal, come to a finding and secure a conviction in a court.

Lucky for you, for some reason they fail to adequately explain, the law enforcement agents will fail to bring forward any such attempted prosecutions for years after the publication of a tribunal report.

Spectacle over substance

Political inquiries, be they directly carried out by politicians or simply mandated by them, are as useful as chocolate fireguards.

The truth is, they are set up by politicians who want to appear macho and in control of a situation; and produce at the end a bill for the public purse and a whimper in the discourse of the nation.

They are more spectacle than substantive.

Oireachtas Banking Inquiry Former Allied Irish Bank chairman Dermot Gleeson leaves Leinster House after giving evidence. Source: Artur Widak/PA Archive/PA Images

One can’t help but feel that this is how the political and public sector system prefers it.

Instead of relying on experts to conduct inquiries or law enforcement to chase suspected wrongdoing, we kick everything to a neat form of touch.

Appearances are maintained, lawyers grow fat on fees and nobody is ever actually inconvenienced by blame.

If we were less for political theatre and more for results, we’d empower two bodies: Firstly, we could give someone like the Comptroller and Auditor General the power to compel funds from the exchequer to run inquiries into failings of the public sector or in matters pertaining to the public good.

So when the State goes bankrupt from a banking collapse for example, the body we trust to audit the spending of State monies should be the one that can step in and set up inquiries with fully sharpened teeth and the power to issue binding recommendations.

State screw ups usually cost the taxpayer money, so be it banking collapses or redress schemes for the victims of clerical sex abuse cover ups, they would have remit to investigate.

Besides this, we need a proper body for investigating public corruption.

Ireland is not a rampantly corrupt country, but it isn’t above reproach either.

The fact is, however, that it is usually down to journalists, such as from Prime Time Investigates, to uncover corruption; and it is rare enough we see anyone carted off in shackles to face a trial.

We should set up a body similar to the Criminal Assets Bureau in that it is independent, can take experts from sources like the Revenue and Gardai, and is empowered to chase criminals in its area.

So, public servants – elected or otherwise – shouldn’t be getting calls from journalists offering them a bit of a bribe to zone some land.

It should be a law enforcement official whose mates will come collect the individual very early in the morning for further questioning.

If we were serious about investigating and learning from the causes of our major State calamities, and if we were serious about fighting corruption, we would give up on the charade of inquiries and tribunals and take these substantive steps. Fat chance.

Aaron McKenna is a businessman and columnist for You can follow him on Twitter here

Read: Didn’t pay attention to the banking inquiry? This is everything you need to know

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