Inquiries farce exposes endemic absence of accountability

Our method of inquiry into controversial business issues is hopelessly broken. That much is clear from events this weekend.

The banking inquiry members, having been hamstrung by legal constraints in their questioning, have had to scramble to agree their report in time to allow those affected read the report before the rest of us can.

Sinn Féin’s Pearse Doherty and Socialist Party TD Joe Higgins have confirmed they will not sign the final report. It remains to be seen if it can add much that is useful to the work done by others, notably the Nyberg commission. Meanwhile, a letter sent by Taoiseach Enda Kenny to Opposition leaders on another inquiry – being undertaken by the IBRC commission of investigation – indicates considerable uncertainty about whether a way can be found to get it up and running.

That commission is caught in a legal netherworld before it even gets going. Last summer we were told 38 transactions could be investigated by Christmas. Now we are told that even if the investigation was confined to Siteserv it would take until the end of next year to complete, and even this requires a string of legal changes and runs the risk of a court challenge.

Confidentiality

Nobody denies that those being investigated have rights: to confidentiality, to fair play and to be able to put their side of the case. However, these rights have now scuppered the ability to conduct investigations into matters of public interest, certainly in the case of what might loosely be defined as business issues.

The banking inquiry, at least, got to question witnesses, and while watching this was often frustrating because of the legal constraints and the round-robin questioning – it had its moment.

The commission of investigation into IBRC hasn’t even got past first base. Even if the commission focuses just on Siteserv, legal changes would be needed to try to find a way around the problem of getting access to what is defined as confidential information.

And there is more. Further legislation would be needed to try to get access to stock exchange information to examine the trading in Siteserv shares before it was sold, “albeit with no guarantee ” that this would actually work.

Then more legislation would be needed to allow Minister for Finance Michael Noonan to direct the IBRC special liquidator to waive legal privilege and get over this problem. This could open the State up to legal risks, the Taoiseach warns.

This is now a farce. How come nobody foresaw even one of these problems when the commission was established last summer? Or was the establishment of the commission a device to buy time and defuse the fuss?

Either way, there is no clear way to progress, beyond making the changes, telling the judge to concentrate on Siteserv and hoping that somehow the legal barriers can be overcome and legal challenges won’t let it all run into the sand. It is very hard to see how this can be done before the general election is called. And a lot of the other issues the commission was meant to investigate will not now even get a cursory glance.

The commission of investigation route has come up against confidentiality and legal privilege and lost.

The commission mechanism worked for the Nyberg inquiry into the banking crash, by far the best document we have on what happened, at least up to a point. The problem was that it worked only because the Nyberg commission agreed that all the evidence would be in private and would be confidential. This allowed a good analysis in its final report, but not accountability.

The chance was missed early in the crisis to appoint High Court inspectors to investigate Anglo Irish Bank and Irish Nationwide. This is one working route, butworks in specific circumstances only. We are still little the wiser about what happened inside these institutions. Criminal proceedings relating to aspects of what happened in Anglo continue, but focus on certain issues only.

UK investigation

The UK, with a similar legal system to ours, managed to investigate its banking collapse much more quickly and efficiently, though questions of accountability remain there too.

The defeat of the 2011 referendum that would have give the Oireachtas more powers of inquiry is part of the puzzle that needs to be solved here. But it is only part of the picture. The banking inquiry raises serious questions about whether TDs and Senators are even the right people to conduct such inquiries.

With the commission of investigation route very limited and the Oireachtas inquiry mechanism showing big failings, we simply do not have a working vehicle. Somehow the public interest has taken second place in investigating matters of public concern.