News Analysis

Monday 1 September 2014

James Downey: The best way to proceed is hold trials first then have bank probe

James Downey

Published 06/07/2013 | 05:00

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Previous tribunals lasted for years, and cost a fortune.
Previous tribunals lasted for years, and cost a fortune.

THE Government is in danger of making a complete hash of the banking inquiry before it begins.

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Minister for Public Expenditure and Reform Brendan Howlin will next week bring a memorandum to the Cabinet on the structure of the inquiry. It seems the memorandum will not propose a referendum which would empower the members to make findings adverse to named individuals.

Think about it.

A few days ago Larry Broderick, who represents the innocent employees of institutions that have crippled the country, summed up what we need to know as "the interactions between bankers, regulators, government departments, developers and politicians".

But under the law as it stands, an Oireachtas inquiry cannot tell us that named bankers, regulators, civil servants, developers or politicians acted corruptly or illegally. To change the law would require a referendum.

This has led, by typically Irish winding paths, to the grotesque proposition that the Government could initiate the inquiry and appeal to the people only if and when its members encountered a stumbling block. In other words, they would have to seek to change the rules in the middle of the game. And stumbling blocks are all too likely.

Shane Ross said in the Dail this week that lawyers were already being hired with a view to making appeals to the courts. We saw a lot of this in the course of the judicial tribunals which lasted for years, cost a fortune, brought no useful results and left the public bewildered.

Can that happen again? In one respect, certainly. It looks as if we cannot hope for a brisk operation that establishes the facts – and brings concrete results – within a reasonable time scale.

The referendum problem could be overcome by holding the poll this autumn, while the inquiry members are engaged in making preliminary arrangements. But there is a greater difficulty.

Findings against named persons could be held to prejudice court trials. A former director of public prosecutions, James Hamilton, has therefore suggested that the trials now pending should be held first. That strikes me as a sensible idea.

But what would be its effect on the time scale? The questions raised in the trials will be extremely complex. Obscure legal issues will have to be threshed out. The lawyers mentioned by Deputy Ross – and doubtless many more – will have scrutinised every word and comma in the legislation governing the alleged offences.

In the case of the tribunals, the public lost interest, and lost faith, as the years rolled by. I don't think that will happen this time. The Anglo Tapes will not be forgotten.

But if the banking inquiry goes on too long, anger will turn to dull despair. People will lose what little hope they may have had for the reform of vital institutions. Politicians will get more than their fair share of the blame. The democratic system itself will be further undermined.

Our present leaders are not tyrants. They are well-meaning people struggling to overcome appalling troubles. But the precedents, and not only those set by the tribunals, are discouraging.

IRELAND is not a happy hunting ground for whistle-blowers. In one notorious but not unique instance, RTE exposed the activities of illegal money-lenders. An inquiry was conducted, not into the money-lending but into the methods employed by the programme makers.

The recent banking scandals were not the first to emerge in Ireland. Earlier disclosures led not to reform, much less punishment, but to repair of the damage at the expense of the taxpayers.

These incidents went by with little impairment of our social solidarity. No longer. The biggest danger we face is that the "little people" may come to believe that governments view the public with the contempt shown by the bankers we have heard on the Anglo Tapes.

And we cannot console ourselves with the knowledge that bigger and more powerful countries go to great lengths to deny their citizens the right to information. We saw the smoothness with which President Barack Obama (echoing Secretary of State John Kerry) reacted to the disclosure that the US spied on its allies.

Then we saw the warrants flying around the world for the arrest of whistle-blower Edward Snowden. The velvet gloves had not stayed in place for long.

The American government (and the French government, and who knows how many others?) can get away with it. But Ireland is an intimate little republic in which trust in the system has been shattered and will be hard to recover.

The inquiry must find the truth of the disaster and share it with the citizens. And this time, the citizens will not be easily convinced.

Irish Independent

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