Sunday 18 March 2018

Darren Lehane: Taoiseach's veto of public bank inquiry is just inexplicable

An independent inquiry similar to Leveson would be far more effective than any parliamentary probe.

Darren Lehane

THE revelations in the Anglo Tapes have shocked the nation. The Government has agreed to hold an inquiry into the collapse of the banking system but it has steadfastly refused to establish an independent public inquiry along the lines of the British Leveson Inquiry.

Speaking in Dail Eireann last week, the Taoiseach stated that he was "not interested in weak, secret investigations that produce nothing". The Dail as "the People's House" would establish a "properly structured and properly resourced parliamentary inquiry" which would get to the truth of what he described as the "axis of collusion" that led to the banking collapse.

The structure for the proposed inquiry will be provided by the Houses of the Oireachtas Inquiries, Privileges and Procedures Bill which is currently before the Oireachtas. This Bill will give parliamentary inquiries extensive powers but it does not give them the power to make negative findings against individuals who are not members of the Oireachtas or directly accountable to it. This is because the Supreme Court ruled in the Abbeylara case in 2002 that the Oireachtas did not have this power and the people refused to overturn the effect of that judgment in the 2011 Oireachtas Inquiries Referendum.

More worryingly, the bill does not guarantee the independence of parliamentary inquiries. Contrast this with the guarantees of judicial independence contained in the Constitution and of commissions of investigation contained in the Commissions of Investigation Act 2004.

This omission is all the more curious in circumstances where the bill contains detailed provisions prohibiting members of the Oireachtas from sitting on parliamentary inquiries where they might be perceived to be biased. What then is there to stop political parties from whipping their members who sit on parliamentary inquiries from voting in a particular way on the findings of the inquiry?

This is not mere hyperbole. The parliamentary inquiry fell out of favour in Britain as a means of investigating matters of urgent public concern for precisely this reason. In 1912, a parliamentary inquiry was established to investigate allegations of corruption in the award of a tender for the construction of a chain of telegraph stations across the British empire to the Marconi Company because the Chancellor of the Exchequer and the Attorney General had bought shares in a subsidiary company just before the result of the tender was announced.

The parliamentary inquiry divided straight down party lines and exonerated the government ministers from all blame. This inquiry was the subject of a famous cartoon in Punch which showed the two ministers dressed in telegraph boy uniforms as the chairman of the inquiry told them: "My boys, you leave the court without a stain – except perhaps, for the whitewash."

In light of this, the Taoiseach's refusal to establish an independent public inquiry is inexplicable, particularly when the means to do so is also currently before the Oireachtas. The Tribunals of Inquiry Bill will radically overhaul the manner in which tribunals of inquiry are conducted in Ireland. It was prepared following the publication of a detailed Consultation Paper and Report on Public Inquiries including Tribunals of Inquiry by the Law Reform Commission.

The Tribunals of Inquiry Bill, unlike the Houses of the Oireachtas Bill, contains an express guarantee that inquiries established under the legislation shall be independent in the exercise of their functions. It provides detailed provisions requiring the terms of reference of inquiries to be set as precisely as possible in terms of the "events, circumstances, systems, or procedures" to be inquired into, thus ensuring that there will be no repeat of the open-ended tribunals of the past.

The bill also contains detailed provisions in relation to costs which dramatically reduce the cost of such inquiries. The amount of legal fees payable to all the lawyers involved will be subject to strict caps and lawyers who wish to act for tribunals will be forced to tender for such work, thus ensuring that future inquiries will cost a fraction of what the old tribunals did.

Also, unlike parliamentary inquiries, public inquiries established under the Tribunals of Inquiry Bill will not be subject to any restriction in terms of who they can or cannot make findings against.

An indication of the potential success of the model contained in the Tribunals of Inquiry Bill can be gleaned from the performance of the British Leveson Inquiry into the Culture, Practices and Ethics of the Press and, in particular, the relationship of the press with the public, police and politicians.

The Leveson Inquiry was established under the British Inquiries Act 2005, which was based in part on the work of the Irish Law Reform Commission in its Consultation Paper and Report on Public Inquiries including Tribunals of Inquiry.

The Leveson Inquiry was established on July 13, 2011. It was chaired by Lord Justice Leveson who was assisted by a panel of six independent assessors with expertise in the key issues that were considered. The inquiry heard oral evidence from 337 witnesses over nine months and received statements from 300 others which were read into the record without them being called to give evidence in person. The public hearings were broadcast live on the internet and the daily transcripts of the evidence were published on the inquiry's website as was most of the documentary evidence. The inquiry cost a total of £5,442,400 (€6,325,000)and it published details of its expenditure on a quarterly basis on its website. It published its report on November 29, 2012 and the report was met with widespread acclaim.

What then is wrong with an independent public inquiry into the collapse of the banking system and the Anglo Tapes, chaired by a judge, which is broadcast live on the internet, costs a fraction of the cost of existing inquiries and suffers from none of the infirmities of a parliamentary inquiry?

Darren Lehane is a practicing barrister. He was the principal legal researcher on the Law Reform Commission Consultation Paper and Report on Public Inquiries including Tribunals of Inquiry. He met with officials from the British House of Commons Public Administration Select Committee during the consultation process that led to the publication of the British Inquiries Act 2005.

Irish Independent

Business Newsletter

Read the leading stories from the world of Business.

Also in Business