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Column: An Oireachtas inquiry into the banking crisis would be a show trial

We need to establish exactly what caused the banking crisis and led to the bank guarantee scheme – but are TD best placed to do this? A Commission of Inquiry is surely a better model, writes Eoin O’Malley.

Eoin O'Malley

THE CURRENT CALLS for some form of inquiry into the economic collapse and the government’s response to it are understandable in the light of the Anglo tapes. While they probably didn’t reveal much that we hadn’t already suspected, their tone was abhorrent to most.

What is not reasonable is that we concentrate our blame on the banks for the debacle. They were probably doing what any interest group does when looking for government assistance – they bluff.

Governments should be used to this. And they should know that when you’re negotiating with someone, information is valuable but talk is cheap. So the government should have taken the time to look through the various banks’ accounts to verify the true situation. They should have thought about what the banks’ interests were and discounted the information the banks provided if it supported the banks’ case. Had they done this they may have still made the same decision because they may have underestimated the likelihood that the property collapse would be as big as it turned out to be. But at least they wouldn’t have been just fooled by ‘faintly dim former rugby players’.

Everyone seems to want an inquiry

But now everyone seems to want an inquiry; so much so that the government is considering rerunning the referendum on Oireachtas Inquiries. We think we need it because we assume that the Supreme Court barred the Oireachtas from holding inquiries. The decision in Maguire v. Ardagh placed severe limitations on the ability of the Houses of the Oireachtas to hold inquires into matters of public policy failure. But it didn’t bar the Oireachtas from holding any inquiries, just the Abbeylara one.

The Supreme Court found limited investigative functions available to the Houses. It argued that:

1. As there was no provision in the Constitution which expressly authorised the Oireachtas to conduct inquiries of the nature which had been undertaken by the Abbeylara sub-committee, any such power must be inherent or implied.

2. That the constitutional right to protection of one’s good name had to be given due weight in considering the question of balance of rights.

Per Murray, McGuinness and Geoghegan JJ: That the Dáil and Seanad had a limited power to inquire, which was inherent in the Constitution, which was implied solely and directly in aid of the functions of each House as delineated in the Constitution. The power did not extend to making ‘findings of fact’ concerning the individual culpability of non-members of the Oireachtas which involved damage to the good name of such individuals.”

The court essentially, if not explicitly, found that it would be unconstitutional for the Oireachtas to legislate to conduct inquires which could impugn the good name and reputation of anyone other that a member of one of the Houses. The Oireachtas interpreted this decision quite broadly and decided that no inquiries were allowed. But the decision was that the Oireachtas was barred from holding inquiries ‘of the nature’ that had been undertaken on Abbeylara.

The Supreme Court said some absurd things in that judgement, but this was not one of them. The overall decision not to allow an inquiry was the right one. The Oireachtas should not want to make such decisions about the unlawful killing of a man by Gardaí? This was wholly inappropriate, and obviously something that should be pursued by the courts.

A banking inquiry will be nothing but a show trial

What the Houses of the Oireachtas might want to make clear the types of inquiries that the Oireachtas foresees itself commissioning and those that it would conduct itself. What will be the purpose of a banking inquiry? If it is to shout at Drummer and Seánie Fitz, then the Oireachtas inquiry is the way to go. There’ll be no shortage of people lining up to call them traitors. But it will be a show trial without even the prospect of a decent hanging at the end of it.

It may be we want to establish exactly what happened to cause a policy failure. This should look at government policy and regulatory performance in the years preceding the crash, and not just the decision on the bank guarantee scheme. But are TDs best placed to do this?

TDs and Senators simply do not have the time to conduct many inquiries properly themselves and perform their roles as legislators/ representatives fully. Even in normal committee proceedings TDs line up to ask the same question but often don’t even hang around to listen to the answer. If you look at one of the reasons for the success of the DIRT Inquiry it was because previous work by the C&AG had already established many of the facts of the case.

A Commission of Inquiry

Perhaps a more useful model would be for the Oireachtas to commission others to carry out inquiries or investigations. So TDs can set the questions they want answered but hire others to ask them. This might mean Tribunals of Inquiry, but when these are run by judges (as they always seem to be) and held in public there seems to be more concern with process rather than finding out answers. They are also expensive and slow. This sluggishness reduces the utility of the eventual report.

The Commission of Inquiry is a better model. There are issues about whether it should be in public or if it should be chaired by judges or a group with expertise in the area. The Nyberg Report on the banking crisis was a good example of a commissioned inquiry working. But the main issue that is rarely considered in popular commentary is who commissions the inquiry.

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The 2004 Commissions of Investigation legislation that the Nyberg Report was a product of has at least one major flaw. Commissions are set up by the executive, exactly who parliament is supposed to scrutinise. It’s for this reason the excellent (but not very juicy) Nyberg report wasn’t able to venture too deeply into government decision making.

It should be the Oireachtas that commissions an inquiry

It should be the Oireachtas and not the executive that commissions an inquiry. Given the dominance of the Oireachtas by government it might be useful if a minority in the Oireachtas can do so – say 40 percent. This is the practice in Germany. These should be rare events and there should be restrictions on potentially vexatious inquires. This could be decided by a special inquiries committee and it might make sense for the Ceann Comhairle to have a veto.

Then when the Oireachtas receives the report from the Commission there can be a public debate about who or what was responsible for the policy failure. TDs can then have call for evidence as to how to avoid such failures in the future. This the Supreme Court expressly allowed.

Dr Eoin O’Malley teaches politics at the School of Law and Government, Dublin City University. He’s on Twitter @AnMailleach

Eoin O’Malley (@AnMailleach) is a lecturer in Irish politics at School of Law and Government, DCU. To read more articles by Eoin forTheJournal.ie click here.

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