Greater transparency vital as recovery takes hold

The list of drastic moves by the Government and its predecessor is as long as it is dispiriting

Emergency laws were passed to  establish  the National Asset Management Agency. Photograph: Cyril Byrne

Emergency laws were passed to establish the National Asset Management Agency. Photograph: Cyril Byrne

 

The crash led to a cascade of draconian legislation to stabilise the banks and the public finances. This was war-time stuff, with transparency sacrificed at the altar of expediency. The time has come to start rolling it all back.

The list of drastic moves by the Government and its predecessor is as long as it is dispiriting. Emergency laws were passed to cut public pay and pensions, to establish the National Asset Management Agency, to nationalise errant banks and liquidate the worst of them.

Common to all was a truly extraordinary increase in ministerial authority. In many cases the release of political and legal shackles was accompanied by new layers of secrecy. Another feature was heavy criminal sanction for any breaches of such secrecy. The legal basis for huge public interventions in the financial system – at vast cost to taxpayers – was cast in laws which simultaneously provided a basis to restrict public scrutiny of the manoeuvres themselves.

Nama’s inner workings are still something of a mystery. The same goes for Irish Bank Resolution Corporation and its special liquidation. Each has encountered controversy: Nama over its northern portfolio; IBRC over dealings with Denis O’Brien. After a familiar cycle of strident accusation and equally strident defence, investigations continue.

Teasing out the State’s increased entanglements with private enterprise often runs into the brick wall of commercial sensitivity.

The prime example here is the nationalisation of Allied Irish Bank in late 2010. At the request of lawyers for then minister Brian Lenihan, journalists from this paper were excluded from the High Court hearing at which the State seized the bank. The rationale for the endeavour was set out in Lenihan’s affidavit to the judge but only a heavily edited version of the document was published. Not for the first time or the last, the mucky work was done in private.

The argument was made that torrid times call for torrid measures. But the legislation under which AIB was nationalised, the Credit Institutions (Stabilisation) Act of 2010, remains on the statute book. This particular law says any court application under its ambit “shall be heard otherwise than in public”. It also allows restrictions on disclosures in open court and on the publication or reporting of any material that “might” be commercially sensitive.

Blocked information

Advance publication of ministerial orders under this law is expressly forbidden – no trivial matter. Conviction on indictment for breaching the provision is punishable by a hefty fine (up to €100,000) or a prison term of up to three years or a combination of both.

Tánaiste Joan Burton was in opposition when this law was enacted. In the Dáil debate at that time, she said the legislation “could probably teach the North Koreans a lesson in ministerial powers, because outside of totalitarian regimes I do not believe there has been a proposal to give powers like this to a minister for finance”. It had the ring of truth back then. It still has.

All rather swingeing, you might think, but similar trappings found their way into the 2013 legislation which underpins the Oireachtas banking inquiry.

The law in question makes it an offence to publish draft reports of an investigating committee regardless of how such reports were acquired. The same applies to the publication of confidential committee documents. Conviction on indictment for breaching these provisions is punishable by a fine of up to €500,000 and/or imprisonment for up to five years.

This is thoroughly overbearing. Parliamentary investigations in the mode of the bank inquiry are political by their nature, not prosecutorial. If leaks are inevitable in our political culture, then numerous leaks around the banking inquiry come as no surprise. Yet the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act casts such actions as an offence. Please.

Unlawful disclosure

After prolonged trauma, the economy is in recovery. Albeit at great cost, the tidal wave of special measures helped steady the situation and avert outright collapse. Now the emergency phase is behind us, it would be in order to restore normal procedures. That means a curtailment of outright ministerial authority. The same goes for North Korean-style court rules. It’s not too much to ask.

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