Monday 26 September 2016

Recognising the difference between a constitutional crisis and a damp squib

Published 03/06/2015 | 02:30

'My attitude is to play the ball rather than the man. Let the truth of fair public dealing fall wherever it may'
'My attitude is to play the ball rather than the man. Let the truth of fair public dealing fall wherever it may'

As constitutional crises go, this was a damp squib. There was never much doubt in my mind about the primacy of parliamentary privilege. The unique opportunity for public-spirited whistleblowers to ventilate hidden scandals through their chosen TD is a sacrosanct feature of our democracy - as it is equally in Westminster.

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In the 1980s, Deputies Barry Desmond, Des O'Malley and Dick Spring fearlessly exposed irregularities in the beef industry and significant EU fraud through the Dáil chamber. This led to Justice Liam Hamilton's beef tribunal report and subsequent reforms of maladministration.

Similarly, as a prelude to the Morris Tribunal in 2002, Deputies Jim Higgins and Brendan Howlin put on the record of the Dáil serious and grave issues concerning the gardaí in Donegal, relating specifically to the McBrearty family. In both cases, the compelling disquiet on behalf of Opposition TDs was sufficient to ensure unanimous approval for a sworn judicial inquiry. It was a bench mark report, leading to reform of the Garda accountability.

High Court Justice Donald Binchy clarified yesterday that he never intended or suggested in his ruling of May 21 any infringement of this rubric of parliamentary democracy - it wasn't an issue before the court.

Is this supreme tenet an unlimited right of free speech for an elected TD? Surely not. If public representatives, irrespective of motivation, assert that "so-and-so is a paedophile" or allege serious wrongdoing by a private citizen, there is a presumption of no smoke without fire. Therefore, deputies should only exercise this privilege if they are absolutely convinced of the veracity of their charges. Sinn Féin's deputy leader Mary Lou McDonald fell short of this high standard in her offshore Ansbacher allegations.

The right of remedy through the Committee of Procedures and Privileges is a meagre consolation to innocent persons who were wronged. Until proper sanctions are put in place, we are reliant on the integrity of TDs to withdraw falsehoods or correct the record.

The furore over Independent Deputy Catherine Murphy's Dáil speech last Thursday is only partially about parliamentary privilege. In essence, it's about banking decisions by nationalised financial institutions after the crash in 2008.

The substantive issues for Denis O'Brien are twofold: in the first instance, privacy relating to his banking affairs; secondly, the accuracy of charges that he received some form of preferential treatment from IBRC. In his attempts to vindicate the latter, he and his representatives may have to sacrifice the former aim. However, public interest issues at stake extend beyond Denis O'Brien.

The job of Alan Dukes and Mike Aynsley in salvaging the Anglo Irish Bank wreckage, as nationalised, was to convert a toxic loan book into a redemption of maximum cash liquidity. Appointed by the late Brian Lenihan, they had no mandate other than to minimise taxpayer losses. It is generally estimated the net exposure of taxpayers, post-IBRC liquidation, will be around €24bn - worst of all indigenous banks. While the debate was previously about burning bond holders, the current focus is on debt settlement with IBRC clients.

The Siteserv controversy deserves a proper independent probe. The prima facie evidence suggests this was an insolvent company, with its total assets exceeding its liabilities. Walter Hobbs explained on RTÉ television how and why he recommended acceptance of the preferred bid.

What remains unclear is how shareholders could recoup up to €5m when their equity rights would and should rank behind all creditors, including those there were unsecured. KPMG's role should be restricted to an initial scoping review leading to a full appropriate Public Accounts Committee investigation.

Such investigations shouldn't be limited to all deals in IBRC involving a taxpayer write-off of more than €10m. Identical principles apply to distressed loan deals involving AIB, Permanent TSB and, especially, Nama. This once-off look through the rear view mirror will undoubtedly reveal exceptional value for anyone who bought loans or assets 'under water' between 2009 and2012. Since then, average asset values have increased by up to 100pc. That was then, this is now.

Let's be clear, public interest should not be confused with public curiosity. Anything to do with Denis O'Brien is a lightning rod for controversy. Why? He's Ireland's wealthiest man and his critics are not prepared to let go of elements of the Moriarty Tribunal Report.

My attitude is to play the ball rather than the man. Let the truth of fair public dealing fall wherever it may. Hidden agendas of either envy, party politics or competitive media are of only marginal relevance.

The most disturbing development of the past 48 hours was Alan Dukes's comments about his future testimony. In relation to the IBRC formal inquiry, he and former colleagues have received no information as to when, how or where they are to be quizzed. No terms of reference have been provided. The onus is on Finance Minister Michael Noonan to now fast-forward a thorough comprehensive examination of all aspects of debt settlement involving taxpayer funds. A differential or even discounted interest rate on a performing loan may eventually look like exceptional value to the public, relative to the vast majority of Anglo Irish Bank distressed debt outcomes. Bring it on, irrespective of your reputations.

Irish Independent

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