Thursday 21 November 2019

Bruce Arnold: Impotent bank inquiry is product of a castrated Dail

When I expressed to a friend my fears for the country and its future, under present political leadership recently, I received a blunt, almost a brutal response. I give it unvarnished.

My fears, he said, were correct, and circumstances were far worse than even I saw them. He then gave a variation on a theme that will be familiar to readers, not just of this column, but of much commentary on the dire state of Irish politics, as is perhaps emphasised in the latest opinion polls.

"We have no political, tactical or strategic leadership worthy of the name," is what this friend said. "Our present political rulers, who recently scrambled their way to power by buying off the fools running the Green Party into accepting complicity in what they do, are simply doing everything that such failing, corrupt and fearful political groups do.

"What they are doing has nothing to do with governing or leading the country. It is simply about their position and how to preserve it. These people want tenure and protection. They either don't understand power or are afraid to use it. Over the Lisbon Treaty they threw away power, squandering it on marginal favours from the top table in Brussels. And they did not recognise what they were doing. All they saw in it was a way of keeping their position.

"Theirs is a political floorshow without any real politics. They wish to avoid all short-term risk, make no innovations, introduce no reforms, avoid all decisions, hang on to their privileges and try and sustain the public perception of their own importance in the hope that something will turn up."

The most recent expression of this approach is in the banking inquiry, but it could be applied to virtually all government actions under Brian Cowen and most under Bertie Ahern in respect of reform and legislation. Simply put, we have not been governed.

Part of the onus of government is to address those issues where an impediment has blocked political progress. In no case is such an impediment more glaringly obvious -- in the present context of a public right for an open inquiry into the banking crisis -- than the Supreme Court judgment limiting Oireachtas inquiries where they might affect the reputation of individual citizens.

For eight years, we have been mesmerised by this absurd, majority judgment -- which effectively says that the people we elect to govern us cannot make findings of fact that might damage anyone.

Obviously, those we elect cannot engage in criminal prosecutions: that is a matter for the courts. But they should be able to determine if individuals did not perform their duties adequately. That issue is precisely what we are, or should be, confronting in relation to the banks.

In such an approach, there is no threat of criminal sanction. Such sanction can only come afterwards -- if and when the judiciary, the DPP and the gardai become involved.

Our recent experience with tribunals has demonstrated how carefully this distinction between findings by inquiry and their processing in other areas of the law are separated.

But the Oireachtas should have the right to refer their deliberations to the DPP so that he can determine if a criminal prosecution is appropriate.

Eight years ago, this matter should have been addressed by way of referendum, and a change to the Constitution proposed in light of the Supreme Court's finding.

This would have presented a deliberate enhancement of the powers of the Oireachtas to the people. As I have consistently argued, particularly over the past decade, the undermining and weakening of the Oireachtas appeared deliberate and structured during the Bertie Ahern years and now the Brian Cowen era. It could be inferred that this was simply a result of putting off necessary reforms through laziness or negligence. But I increasingly suspect other motives.

It is certainly the case today that the failure to address the castration of our elected politicians makes the banking inquiry, as structured, favourable to those who have much to hide. It is all a bit like one of those Russian toys, in which a smiling image of a peasant is unscrewed in order to reveal another smiling peasant, and then another.

This is a fitting emblem of what is now to happen. We will have one semi-private investigation that will open out into another semi-private investigation, so that when the matter gets to the Dail, it will be largely incomprehensible. In any case, the Dail's ability to say or do anything worthwhile has already been rendered sterile by the Supreme Court.

How convenient for Brian Lenihan and Brian Cowen! They are treating us with disdain and the banks with kid gloves, as they have done all along. Into the bargain, the Attorney General has suggested, without giving us much by way of authority, that it will be necessary, while the inquiry is under way, to suspend police investigations into the actions of the bankers who got us here.

What we needed, and did not get, was a tribunal of inquiry. If we failed to mend the Constitutional problem, we should have made tribunals less expensive. Firstly, tribunals should be given a deadline, without extension and with court powers, to hear and decide on stalling objections within 24 hours. Secondly, no one involved in tribunals should be paid more than their chairpersons.

One approach put to me by a civil servant is that all people working on tribunals -- including the administrative staff and all lawyers -- should be deemed to be civil servants for the duration of the hearings and paid at assistant secretary level or less, perhaps much less.

This is the kind of thinking we should have had from our supposed leaders. Some hope!

barnold@independent.ie

Irish Independent

Today's news headlines, directly to your inbox every morning.

Don't Miss