Stalled IBRC inquiry turns spotlight on Attorney General
Maire Whelan is under pressure over why the confidentiality issue was not forseen
Published 15/11/2015 | 02:30
When news broke of the stalled inquiry into the state-owned bank IBRC's debt write-downs, the spotlight inevitably turned on the Attorney General, Maire Whelan.
This was, after all, a legal issue. The judge appointed to the Commission of Inquiry hit a brick wall because the data he was investigating was confidential or privileged and open to legal challenge. The inquiry seemed dead on its feet and by week's end, there was still no clarity on how it would be resuscitated.
The opposition scoured for heads and alighted on the Attorney General's. "It is extremely difficult to believe that the foremost legal mind in the country did not anticipate problems arising in relation to confidentiality and access to the banking data of debtors of IBRC," said the Social Democrat TD, Catherine Murphy.
Some say the notion that a lawyer of her standing would have missed a trick like that doesn't wash.
When she was appointed Attorney General (AG), Michael D Higgins declared her "an inspired choice".
"She is absolutely brilliant, a rare combination of clear thinking and efficient delivery," said Higgins of his former student. Ms Whelan, who is from Kinvara, studied sociology and politics at University College Galway.
She became a low-profile senior counsel, working in property and in family law. Her involvement with the Labour Party was also largely behind the scenes, where amongst other things, she served as financial secretary.
As AG, Ms Whelan's office has come under scrutiny before. But the Fennelly Commission's report on the events that unfolded before the "retirement" of the Garda Commissioner, Martin Callinan, made her a soft target.
The report showed that even the esteemed offices of the AG are prone to oversights, crossed wires, and "serious information deficits".
The back drop to Mr Callinan's departure was the discovery that phone calls into certain garda stations were routinely recorded.
Ms Whelan was told about these recordings when they came to light in November 2013. Five months later, she read a 15-page report by one of her officials, which included a suggested legal justification for the recordings.
Ms Whelan initially told the Fennelly Commission that she briefed Taoiseach Enda Kenny that the calls were "in complete violation of the law".
She later backtracked, saying she had referred only to "potential illegality" and had not accused anyone of an "offence".
She believed she didn't have all the facts, and Fennelly found it "puzzling" that she didn't seek them from the Minister for Justice or from Gardai.
Fennelly concluded that Ms Whelan had made "a very dramatic presentation" of "widespread and longstanding unlawful behaviour in An Garda Siochana".
The briefing shocked the Taoiseach, who in turn dispatched a civil servant to convey his concerns to the Garda Commissioner. The rest is history.
Ms Whelan survived the aftermath of Fennelly.
A couple of months on and she is back in the spotlight, unfairly say sources.
The terms of reference for the IBRC inquiry were voted on in the Dail: "No one raised a peep then about the issue of banking confidentiality."
But it is an issue now and has been since August when the Department of Finance flagged it. The Taoiseach only found out about it last Friday week in a letter from Judge Brian Cregan. Opposition leaders have asked why was there no legal intervention sooner? Like the banking data, the AG's advice to government is privileged.