Tuesday 27 September 2016

Inquiry's credibility fades in farce worthy of Inspector Clouseau

Published 01/08/2015 | 02:30

Former Tánaiste and PD leader Mary Harney arrives to testify before the Banking Inquiry. Photo: Steve Humphreys
Former Tánaiste and PD leader Mary Harney arrives to testify before the Banking Inquiry. Photo: Steve Humphreys

The decision by Banking Inquiry members to charge down the David Drumm cul-de-sac has completely undermined whatever credibility the inquiry had retained. The idea of taking evidence from Drumm by video link wasn't just ill-judged, it should have been obvious to anyone that it was a complete mistake.

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After a week of legal farce and investigative acumen worthy of Inspector Clouseau, the public's patience has evaporated.

We were told this inquiry would have access to thousands of relevant documents from the period, yet most questions put to witnesses have lacked a forensic touch. In fact, they seem to be based more on newspaper clippings from the period of the banking collapse than detailed "insider" information gleaned from confidential documents.

If you think the inquiry has been a little lightweight, wait until you see its final report. Even before it is committed to print, we know it cannot make findings of fact against individuals. It will be consigned to vague generalities reminiscent of what we have had before.

Politicians are not the best people to conduct this kind of inquiry. Party politics, legal constraints, lack of relevant skills and being too busy with other things, means they have shed little new light on the causes, mechanics, motivations and mistakes of the €64bn banking crash.

Where did it all go wrong we might ask? We already have several methods for inquiring into important matters of public interest yet don't seem able to apply any of them properly.

What did we need from a proper banking inquiry? We simply needed to know what went wrong, who is to blame for that and how can we ensure it doesn't happen again. This was not about retribution but accountability and understanding for the future.

We have already had several investigative reports which have all failed to deliver on those two basic requirements. These included: the Klaus Regling and Max Watson review of macro-economic factors behind the collapse; Patrick Honohan's report into the failure of regulation; another report was drafted into the shortcomings at the Department of Finance; and the Commission of Investigation led by former Finnish regulator Peter Nyberg.

Commissions of investigation were introduced to do away with the need for expensive and lengthy tribunals of inquiry. They have very strong powers in legislation to compel witnesses and can even enter your home if they believe you are hiding documents.

Unfortunately, the Nyberg commission was given limited terms of reference to look at failures in the system. It chose to conduct the investigation based on anonymous interviews as a way of speeding up the process and identifying where the system failed. It did nothing to identify who had failed. The commission accessed around 200,000 documents in the banks and various authorities. It also conducted 140 interviews. But it was given just six months to do the job. Assuming one month to write the report, this left about 150 days to do the investigation. Based on a five-day working week, this allowed for 1,538 documents per day to be read and just over one interview per day, every day.

The commission said that assigning blame was not part of its remit, and it chose to identify no individuals, only organisations, by name. Yet it interviewed former bank chief executives such as Seán FitzPatrick, Michael Fingleton and others. We will never know what they said, unless and until the documents are released to the National Archives in the year 2040. The entire process lacked an adversarial edge.

The Oireachtas inquiry was supposed to deliver on the accountability part of the public right but doesn't appear capable of doing that.

So what should have happened? High Court inspectors should have been appointed to Anglo Irish Bank and Irish Nationwide back in early 2009.

Inspectors should then have been appointed to the other Irish banks at the same time each one needed fresh capital from the taxpayer.

Back in 2009, the Labour Party (in opposition) was calling for High Court inspectors to be appointed. But once the gardaí walked in the front door of Anglo Irish Bank's head office in St Stephen's Green to begin a six-year investigation, the calls for inspectors stopped.

High Court inspectors could have included the financial regulator, auditors and others in their terms of reference.

The Garda and the courts are the ultimate method for delivering on the public's right to accountability where laws have been broken. However, as an investigative process it does nothing to provide citizens with timely explanations of what happened.

It also does nothing to deliver a level of accountability on those who have behaved appallingly, stupidly or simply recklessly, even if criminal laws have not been broken. It doesn't assess breaches of corporate governance unless laws have been broken.

The burden of criminal proof is enormous and leaves no room for making findings outside of criminal activity. High Court inspectors would have conducted interviews and published a report with findings and transcripts of what the various players had to say. It worked very well with Ansbacher and National Irish Bank and should have been repeated.

We would have had explanations and evidence from key players available to everybody by 2011, even if the probe took two years to complete. Criminal prosecutions could have followed where appropriate. High Court inspector reports carry more legal weight in follow-up prosecutions than tribunal of inquiry reports do.

Bodies like the Central Bank, which should have been the subject of investigation, should not have been the ones conducting inquiries, as happened with Irish Nationwide.

I watched on television some of the public sessions in the UK parliamentary inquiries that followed its banking collapse. The questions asked of witnesses were informed, analytical and focused.

The UK's Independent Commission on Banking was set up in June 2010 and produced a report by September 2011. It also set up a parliamentary commission on banking standards. It didn't faff around on nonsensical legal issues such as David Drumm.

There are just two ways to understand how so many useful investigative tools have been so poorly applied to the banking crash. Either there is a real political reluctance to do it properly or we are hopelessly incompetent.

You can make up your own mind.

Irish Independent

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