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IBRC flaw should have been blindingly obvious to commission of investigation

Alan Dukes at a press briefing in relation to the Siteserv issue last April in the offices of Eames Solicitors, Dublin. Picture: Sasko Lazarov

IT’S ALL about dodging bullets from here to the election, and with the cock-up of the investigation into Siteserv, the Government has seen one bullet whizz by into eternity. The bullet in question may well have turned out to be a dummy, but nobody likes taking chances in a year of election.

A number of questions arise about the news that the Commission of Investigation into 37 transactions by the IBRC is in serious trouble.

The probe was designed to examine whether the exchequer got value for money in the transactions, all of which resulted in a loss of €10m or more to the State.

It all arose over a controversy around the Denis O’Brien-vehicle Siteserv after it was revealed that €100m was lost on the sale. Throw in the incendiary fact that one of Siteserv’s lines of business is the installation of water meters and the potential for political fallout heightens.

Back in April, after initially announcing a bit of a mocky-yah inquiry, Minister for Finance Michael Noonan finally threw in the towel and accepted that the full monty, a commission of investigation, was required to quell public concern.

“Given the scale of the banking crisis and the amount of taxpayer money involved, it is essential that the public concerns regarding certain transactions in, and issues raised relating to, IBRC are addressed in a comprehensive manner,” he told the Dáil on June 9.

“Let me be clear, in that there is no evidence of any wrongdoing in the various transactions. However, I recognise that there are genuine public concerns, which have grown significantly in recent weeks. A well-resourced commission of investigation with targeted terms of reference and an ambitious timeline is the best way to address public concerns.”

Now, it turns out, the ambitious deadline of December 31 will definitely be missed.

At issue is the inability of the inquiry to access documents that are covered by privilege or confidentiality. The chair of the inquiry, Judge Brian Cregan, wrote to Enda Kenny last Friday informing him of this impasse.

Fixing the matter will not be easy. From a political perspective, that means there isn’t a snowball’s chance in hell of a result from the inquiry this side of the general election. In one fell swoop, Noonan, Kenny, et al have swatted into the never-never another possible scandal that could cost votes.

This state of affairs is extremely convenient for the Government, giving rise to the question that has dogged this administration through a number of issues over the last few years. Conspiracy or cock-up? Or, to put it more benignly: Should it not have been blindingly obvious that this problem would arise?

The problem hangs on the legislation under which the inquiry is being conducted. The Commission of Investigation Act was passed in 2004 to save the country from any more tribunals. By then, a couple of serious gab-fests were under way down in Dublin Castle, providing a diet of merriment and outrage for the general populace, and some major euro for all legal personnel involved.

The minister for justice at the time Michael McDowell came up with a new model that would be conducted behind closed doors, with a stripped-down input from the legal people.

Over the last decade, the model has been used successfully on a dozen occasions. By and large, the outcomes have confirmed that the commission is an efficient and relatively cost-effective method of conducting inquiries.

Then along comes the exception. This is the first time the model has been used in investigating financial and banking matters. Any tuned-in brain around the cabinet table should have copped that this was going where no commission had gone before. Confidentiality is a cornerstone of banking. How come nobody spotted it?

The matter of privilege should have registered with any tuned-in legal brain.

Privilege is protected in the Constitution. No court has the power to order discovery of material that is privileged. How was a commission going to get past that matter?

Perhaps nobody in the cabinet was tuned in when it came before them. But then neither did anybody in the Oireachtas when the commission’s terms of reference were introduced on June 9 last.

A view might be taken that the Cabinet had precious little interest in the detail of the inquiry, considering it an irritant that had to be permitted in order to park a controversy.

A similar attitude may have informed the failure to spot potential problems in the Houses of the Oireachtas. Much political capital had been garnered by opposition parties in forcing the Government to set up the commission. With that already in the bag, there appears to have been little enthusiasm to parse the detail.

More serious by far is the failure of the Government’s legal adviser to spot a heretofore untouched issue. Surely that is the meat and drink of advising government of its legal duties. Unfortunately for the office holder, Máire Whelan, this is not the first controversy into which she has walked. Her role in the run-up to the departure of then Garda commissioner Martin Callinan last year came in for serious criticism on publication of the Fennelly commission report.

The commission did finally get around last week to concluding that the matters of privilege and confidentiality would impede a proper investigation. Why, it might well be asked, did it take so long? Surely it should have been obvious before now.

One factor that may be involved is that the commission is now on its third chairman, the first two having stepped down for personal reasons unconnected to the inquiry.

Conspiracy or cock up? On balance, the smart money says this whole farrago has resulted from a wanton cock-up on the Government’s part rather than conspiracy to turn a blind eye to an obvious shortcoming. This Government has shown itself to be quite adept at cock-ups over the last few years.

So don’t hold your breath. By the time this commission reports — if it gets that far — we will be well into a new Dáil term.

Judge Cregan and his team have an unenviable task. Effectively, they are being asked to judge whether commercial deals done by IBRC delivered an acceptable return for the exchequer. This amounts to a review of decisions taken in different economic times, in a bank that was destined to be wound down.

The inquiry has encountered its first major obstacle. It’s a good bet that there will be more.

Michael Clifford

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Time to make Attorney General answerable for actions

A common thread is the pretence the AG is a special creature above politics

Attorney General Máire Whelan: The Fennelly report raised very serious questions about her judgment. She gave seriously inconsistent evidence to the inquiry. Photograph: Dara Mac Dónaill

The Attorney General is one of the most powerful and influential people in the State. She is also one of the least accountable. If she screws up, she does not have to answer to anybody except the Taoiseach and then only in private. Máire Whelan is widely respected, liked and admired. But she came very badly out of the Fennelly report into the resignation of the former Garda commissioner, Martin Callinan. And she comes badly out of the debacle over the establishment of a commission of inquiry into the Sitserv controversy that did not have the legal powers to do the job.

This happens – people get things wrong. But in a democracy it is crucial that when it happens, the person responsible has to explain how and why things went so badly awry. Yet a combination of colonial overhang, legal pomposity and political convenience gives us a powerful public servant who does not answer to the public.

The Fennelly report raised very serious questions about the AG’s judgment. She gave seriously inconsistent evidence to the inquiry. She first told the judge that “decades of recording phone calls in and out of Garda stations [was] in complete violation of the law, with total disregard for the requirements of ministerial authorisation and of the rights of the citizen”. She said “this was criminal activity being engaged in by An Garda Síochána” and a “most grievous matter”.

Startlingly, she later made a written submission to the inquiry that presented what the report termed a “substantially modified” view in which she said her previous “trenchant language” had left the commission with an “erroneous impression” as she meant only that there was a “potential illegality”.

The gulf between these two positions is disturbingly wide.

In a functioning democracy, citizens would be able to hear from the holder of such a pivotal office how she came to so substantially modify her evidence to an inquiry established by the Oireachtas. 

A Dáil committee would take her through the events and her reaction to them and give her the opportunity to explain herself. She might, after all, have had very good reasons for her different views, and changing one’s mind is not inherently ignoble. But the very suggestion that this might happen was treated like a proposal for an orgy in a cathedral.

Pomposity

A fug of pomposity surrounds the office of Attorney General . The courts call the AG a “great officer of State” and an “independent constitutional officer”. But in practice, the system does nothing to make the AG really and truly independent of politics. We end up with the worst of both worlds – a highly political office sealed off by a fiction of complete political independence. The AG can’t answer questions because that would threaten an independence the role does not in fact have.

The odour of sanctity that hangs over the office like a protective veil is really a cheap perfume. The role is utterly political. Bizarrely, the AG can be a sitting TD –John Kelly fulfilled both roles in 1977 – and thus subject to a party whip. The AG is appointed technically by the President but in reality by the Taoiseach personally. Is it mere coincidence that the Taoiseach habitually finds the best person for this “independent” office among the ranks of supporters of one of the parties in power?

Once appointed, the AG serves at the whim of the Taoiseach, who can sack the AG for any “reasons which to him seem sufficient”. Her tenure is entirely subject to the arbitrary whims of the Taoiseach.

If this seems like a throwback to a colonial monarchy, it’s because it is. The office of AG was recognised in the Ministers and Secretaries Act of 1924, but it was not created: it assumed all the “business, powers, authorities, duties and functions” of the colonial-era office of Attorney General for Ireland. The 1937 Constitution further recognised the office, but it didn’t create any mechanisms to make it accountable. Essentially, the Constitution incorporates an old colonial institution into the governance of a republic without making it fit for democratic purpose.

And yet this office exercises vast political power. How often do we hear that something that is urgently needed can’t be done because of the advice of the AG? In effect, the AG has become a one-person Supreme Court, deciding in advance that legislation can’t be proposed because, in the view of that single individual, it might be unconstitutional. Politicians, in turn, hide behind the AG: Eamon Gilmore’s new book, for example, justifies the grotesque 14-year prison term for any woman using abortion pills because the AG decreed it to be necessary.

Unaccountable

We know from repeated experience that unaccountable power makes for bad governance. We see bad governance at work in the Fennelly report and we see it again in the fiasco of the Siteserv inquiry. A common thread is the pompous pretence that the AG is a special creature, above politics and above accountability. This new debacle must be a catalyst for legislation to make the AG answerable for her actions. Or would that have trouble getting past the AG as well?

Fintan O  Toole

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