Wednesday 28 September 2016

Coalition sends for the wonder drug that can cure all ills...

Shane Ross

Published 14/06/2015 | 02:30

TRIBUNALS: Ansbacher, Beef and Mahon, former Taoiseach Charlie Haughey did them all
TRIBUNALS: Ansbacher, Beef and Mahon, former Taoiseach Charlie Haughey did them all

Last week, the political witchdoctors sent for the wonder drug. It has never failed. It removes the patient from circulation. It freezes the disease. It always secures remission. It injects amnesia into the minds of the masses.

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No, Michael Noonan and Enda Kenny had not discovered a miracle cure for the outbreak of mad cow disease. They had returned to the last resort of political undertakers: they were burying another potential skeleton in the Leinster House cupboard. The saviour of all governments in deep trouble, a Commission of Investigation was hurried in.

It could have been a tribunal, a mere inquiry or any other form of probe into the activities of IBRC. There was a sense of urgency in government circles. The IBRC disease was blazing like a bushfire. The Dail was getting frisky. All manner of past actions by the IBRC bank could have surfaced in the public arena. They urgently needed to put the genie back in the bottle. It was necessary to take the time-honoured road: park the problem behind closed doors, safe in the hands of a Commission of Investigation.

The template is perfect. Find a beak. Give him a budget. Burden him with lashings of work, a staff of experts and consultants. Lock him in a room for six months. Specify safe terms of reference. When he discovers that he is only half way through his task, give him an extension. And another. After he eventually emerges with his report, there will be a media furore. The frenzy will only last a few days. But all is well: the report will be debated in the Dail...

TDs' memories of the surrounding controversy will have faded. Or in the case of last week's hiatus, newly-elected TDs will have no memory of it at all when they are debating it in 2017.

Whoever wrote the bible on how to defuse a political crisis should have patented the commission cocktail and sold it to the Irish government. The tribunal/ commission of investigation formula has served the Irish political elite well. It has silenced TDs - forbidden from discussing sub-judice matters - removed politically embarrassing matters from public view and allowed the Government to resume its only object of winning the next election.

Our record of establishing inquiries of all sorts has a familiar pattern. While tribunals or commissions may sometimes make dramatic findings, consequential action is the inevitable casualty. Nothing happens.

Does anyone remember the Ansbacher Report of the High Court Inspectors? It found 289 cases of illegal tax evasion. It resulted in the collection of €113m in taxes and penalties. Settlements were made with most offenders. How many of them were prosecuted? Not a sinner. Meanwhile, petty tax offenders found themselves in court, named and shamed for minor misdemeanours.

When Josephine Feehily, chairman of the Revenue Commissioners, was asked at the Public Accounts Committee (PAC) in 2013 why no Ansbacher account holder had ever been prosecuted, she offered the excuse that too much time had elapsed. Maybe no one was brought to justice, but all is well, the report was debated in the Dail...

Or perhaps you recall an even earlier version, the Beef Tribunal, set up by Charlie Haughey to investigate allegations of fraud in the beef industry? Both Taoiseach Haughey and Albert Reynolds were in the tribunal hot seat because of their close relationship with beef baron Larry Goodman. Haughey himself appointed High Court Judge Liam Hamilton to sit as the sole investigating judge in the Beef Tribunal. In his report Hamilton gave his patrons, Haughey and Reynolds, the benefit of the doubt in the case of multiple accusations made against them. A few months later, Hamilton was made chief justice. One politician called Hamilton's report "the longest job application in history". Never mind, all is well, the report was debated in the Dail...

The mammoth Mahon Tribunal into planning matters took 15 years. Nothing happened afterwards but it was debated in the Dail…

The Moriarty 'payments to politicians' Tribunal spanned 14 years before it was debated in the Dail...

The Smithwick Tribunal into collusion between the gardai and the IRA took eight years to reach some dramatic conclusions. Nobody was prosecuted but all is well, it was debated in the Dail…

All three tribunals saw a single judge embarking on a solo investigation into political dynamite.

Tribunals can be convenient political vehicles. Last week's supposedly principled argument between Government and opposition about timing and terms of references was less part of the search for the truth than political jousting. The Government wants a long time to lapse before the IBRC report is published in order to avoid political embarrassment prior to a general election. Fianna Fail wants an interim report in October to keep the controversy on the boil in case of an autumn poll. The latest Commission of Investigation was becoming a political plaything, the pursuit of truth relegated into second place behind electoral advantage.

Although it can take no risks, the Coalition knows that the report's findings are unlikely to rock any political boats. The idea that a judge, advised by so-called experts, can convincingly decide whether the sale of all assets in IBRC were good or bad value to the taxpayer is fantasy. Many of the sales will look absurd.

Of course, if there is a horror story in there he will probably rumble it, but the disposal of assets in a fire sale is a totally subjective commercial decision often taken on the spur of the moment, in market conditions that were unprecedented. Some IBRC sales of distressed assets will look ridiculous in today's markets, others less so.

A credible case can probably be made either for or against nearly all of the sales. Indeed knowing the flexibility of financial advisers, the judge will find experts taking diametrically opposite views on the merits of every transaction. In this case he will be judging investment decisions, not undisputed facts.

The decision for the commission to sit in private beggars belief. Even the Banking Inquiry is holding many of its hearings in public. But that, of course, is a different sort of investigation with a different political purpose. In the Banking Inquiry, political advantage can be gained by parading your political opponents in front of the cameras. The terms of reference and procedures of the banking probe have been written to embarrass the Opposition. The timing of witness appearances has been fixed to bring the big, bad Fianna Fail crowd in before the public close to election day.

Horses for courses. When judges sitting alone, in private, suit the powerful, that is the form chosen by their political masters for an inquiry. When it will deeply discomfit their political opponents, they choose an open forum to remind the public of the Opposition's past sins.

Sometimes, politicians go rogue. A few unofficial political inquiries got out of hand last year when the Public Accounts Committee (PAC) ran amok and decided to tackle the wrongs in the Central Remedial Clinic and other charities. Such freelance ventures into centrally uncontrolled investigations toppled the board and ensured a new broom swept through the Clontarf clinic.

It is unlikely to happen again. Last week, the PAC was legally advised that it should keep its inquisitive minds off the IBRC sales or other related matters. They were outside our remit. We might be "encroaching" on the functions of the investigation.

The terms of reference of the commission are broad, stating that "the commission shall report on any other matter of concern…"

The PAC is muzzled, forbidden to enter any territory entered into by the learned judge, Dan O'Keeffe. The terms of reference are written by the PAC's political bosses.

The wonder drug has worked again.

*******

In last week's column I referred to being stood up for lunch by a member of the Irish Fiscal Advisory Council. The IFAC wishes to point out that the member had retired a few months earlier.

Sunday Independent

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