Appointment of an independent chair would facilitate an impartial banking investigation

Government lost referendum vote through its arrogance during the campaign

 Peter Nyberg’s report was comprehensive, but his  terms of reference were too narrow and his findings too general. His inquiry was conducted in private and did not name names. Photograph: Bryan O’Brien

Peter Nyberg’s report was comprehensive, but his terms of reference were too narrow and his findings too general. His inquiry was conducted in private and did not name names. Photograph: Bryan O’Brien

Sat, Jun 29, 2013, 01:00

The previous government was largely responsible for the banking crisis but the current Government bears much of the responsibility for the fact that there has been no public inquiry into that banking collapse.

It is worth briefly revisiting the chronology. The bank guarantee was put in place in September 2008. In January 2010 the Cowen government finally agreed to an inquiry. It resisted calls for an open-ended public inquiry at that stage, opting instead to commission two “scoping” reports to set out the basis “to prepare the terms of reference for the second stage, which will involve the establishment of a statutory commission of investigation”.

Patrick Honahan prepared one of these reports into regulatory and financial stability policy as implemented by the Central Bank and financial regulator. Klaus Regling and Max Watson prepared the other into the wider factors which contributed to the collapse. These reports were completed within 12 weeks, and published at the end of May 2010.

On September 21st, 2010, within three month of the preliminary reports being published, a statutory commission of investigation was established with Peter Nyberg as the sole member. He was given six months to complete his report, which was published by the current Minister, Michael Noonan, in April 2011.

It is now more than two years since that commission of investigation report was published. It was comprehensive, but Nyberg’s terms of reference were too narrow and his findings too general. His inquiry was conducted entirely in private and he did not name names, so his report is seen by many as not having met the need for public accountability.

Full investigation
In its manifesto for the 2011 election Labour promised a full investigation into the bank guarantee, including hearings before a parliamentary committee. Both Fine Gael and Labour promised a referendum to remove the restrictions that the Abbeylara judgment imposed on the power of parliamentary inquiries to make adverse findings.

The new Government, however, squandered its opportunity to achieve this constitutional change in the Oireachtas inquiries referendum in November 2011. They proposed an amendment which would have put such inquiries almost entirely outside judicial oversight in a manner which would have undermined basic civil liberties. The Government was guilty of overreach in the referendum proposal and arrogance in the conduct of the campaign. The Government lost and is still trying to blame everyone else.

It is now 20 months since that referendum was defeated. The Government was slow to publish alternative legislation for parliamentary inquiries. It was finally taken at second stage in the Dáil in May of this year, and the Government hopes to complete all stages of this legislation in both Houses by the end of July.

Even if it manages to do so there is little reality to the terms of reference and detailed procedures for such an inquiry being agreed before September. The terms of reference will be particularly important if there is to be any reality to the inquiry finishing its work during the current Dáil’s term.

The most important aspects of a banking inquiry are likely to touch on the actions of leading figures in Anglo Irish Bank so these modules will have to be adjourned until criminal trials involving some of these individuals are finalised and appeals, if any, are dealt with.

The greatest difficulty the proposed parliamentary inquiry will face, however, is the risk that the politicians involved will not be able to resist the temptation to politicise the inquiry’s work.

The events of this week confirmed what we always suspected – most politicians are incapable of the detachment necessary to impartially conduct such an inquiry.

The exchanges this week, from the Taoiseach down, were all about political point-scoring rather than any desire for careful fact-finding.

One suggestion which may assist in steering a parliamentary inquiry away from the partisan trenches would be to have a non-politician as chair. The Oireachtas could appoint a committee of inquiry under the Howlin legislation but appoint a retired judge or some other independent figure from Ireland or abroad to chair it. Ideally this should be someone with experience of conducting inquiries on such a scale.

The appointment of an independent judicial chair from the outset would assist in shaping terms of reference which are not partisan, and in developing rules for the conduct of the inquiry genuinely designed to ensure fair procedures.

Public hearings
In addition, this chairperson could preside over the public hearings of the Oireachtas committee. In this way the desire that leading figures responsible for the banking crisis should be held to account in televised testimony before the people’s representatives could be met.

An impartial chair could ensure such hearings were conducted in a way designed to avoid political slagging matches, witch-hunts or grandstanding.

Impartial and even-handed chairing would go some way to ensuring that a fair and relatively fast parliamentary inquiry into the banking crisis might finally be possible.

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