Tuesday 22 October 2019

How the perfect storm came to break over the Four Courts

Finance Minister Michael Noonan, who this week announced a Commission of Investigation into the Sitserv deal and other IBRC transactions
Finance Minister Michael Noonan, who this week announced a Commission of Investigation into the Sitserv deal and other IBRC transactions

Liz O'Donnell

Politics, like King Lear's thankless child, can be "sharper than a serpent's tooth." The Government must be sickened by the week's events. Only last weekend the Coalition parties were flying high in the polls. Brendan Howlin had secured a wage deal with the public service unions; there was even speculation about an early election. Unemployment, at 9.8pc, was lowest since 2009 and tax revenues were way ahead of projections. But to quote Pat Rabbitte: "Bond yields butter no parsnips."

A perfect storm was brewing down at the Four Courts. Businessman Denis O'Brien had been granted an interim injunction against RTÉ, halting the publication of a story about his banking arrangements with IBRC, which he claimed breached his privacy rights. Round one to Mr O'Brien.

But Independent TD Catherine Murphy, who had been probing the Siteserv deal for months, read the disputed banking information on to the Dáil record under Dáil privilege. A nervous media hesitated to report her speech over the weekend for fear of being in contempt of court. But that fear proved groundless. On Tuesday, the High Court confirmed that privilege trumped the injunction against RTÉ and the remarks could be published.

Overall, it was a piece of drama that brought the big beasts of Irish politics out on the stage. Michael McDowell, Pat Rabbitte, Alan Dukes and Micheál Martin all waded in. As a story straddling law, business, the media and politics, it has everything. A controversial and litigious businessman versus a self-effacing but highly effective Independent TD using the mechanisms of the Dáil to hold the Government and its agencies to account.

Former Chairman of IBRC, Alan Dukes, never one to ignore a slight, came out guns blazing, in defence of the bank's actions and that of his board in dealing with clients. The deputy's claims were "wrong", he declared. Yet he was precluded by bank confidentiality from specifically countering the allegations of preferential treatment of certain customers in relation to their loans.

Mr O'Brien's spokesman accused Ms Murphy of "peddling" false information. It was getting very messy. How were we to judge the veracity of the TD's claims when they were so strenuously disputed by Mr O'Brien and Mr Dukes?

Understandably, the media went into overdrive on the Dáil privilege issue. Headlines screamed "constitutional crisis", with calls for the Dáil to be urgently recalled. But the substantive question was whether preferential interest rates were applied to certain big clients of IBRC (formerly Anglo Irish Bank), resulting in significant loss to the tax payer. If what Ms Murphy claimed was true it needed to be justified and explained.

Then out of the blue, Michael Noonan's image filled our TV screen announcing a Commission of Investigation into the Siteserv deal and other IBRC transactions involving a loss of over €10m. This was certainly an improvement on the earlier "review", which was widely viewed as lacking the perception of independence required to investigate these matters.

Mr Noonan looked troubled and dejected. With a fatalistic air, he said "Let the chips fall where they may", an ominous remark, even when followed by "there is no evidence of any wrongdoing yet."

But in fairness to the individuals concerned - Mr O'Brien, Mr Dukes, former IBRC CEO Mike Aynsley and Ms Murphy - and their respective reputations, the Commission of Investigation process is probably the best way to go.

Unlike a Tribunal of Enquiry, the proceedings will be chaired by a judge and held in private, therefore avoiding the costs and duration which have been a feature of past Tribunals. The deadline of December is ambitious, but a trawl of the major transactions will quickly reveal patterns and trends.

However, individuals might legally challenge the Commission's powers. The Commission can investigate any preferential interest rates to large clients of IBRC and will look at any share dealing in advance of sales of distressed companies like Siteserv.

Ms Murphy has welcomed the Commission's establishment. She is not grandstanding, unlike the opposition howling "U-turn" and alleging a cover up by the minister.

Junior minister Simon Harris was quick to attribute responsibility for any shortcomings that may be found to IBRC management rather than the minister.

Questions about "governance" of IBRC also featured prominently in the RTÉ case, in which no suggestion of misconduct on Mr O'Brien's part was made.

Documents released under Freedom of Information also indicate serious persistent tensions about control of the bank.

Although full on, it was a good week for democracy and for politics.

Important things are being clarified about the separation of powers, reputation, privacy, business and banking ethics. For once, the public interest is getting serious attention.

The passion being ventilated on all sides is not contrived, as in the water charges controversies. Ms Murphy is a modest and effective public representative. To her credit, she has pursued these matters methodically and in line with parliamentary procedure by tabling sequential questions.

This is how parliament holds government to account. It is why TDs enjoy Dáil privilege - to protect them in doing serious work in the public interest.

This Government was elected on a mandate to clean up Ireland's banking and fiscal disaster. Ironically, Anglo, the bank that so spectacularly broke Ireland, is still in play in current affairs. Its successor, IBRC, is now centre stage for all the wrong reasons. Another bank scandal is the last thing this Government needs as it enters the last lap of its term.

Much is at stake. Like it or not, governments are judged not so much on what they achieve, but also on what they preside over. Small wonder that ministers had ashen faces and there was no sign of the Taoiseach until the Cabinet passed the parcel.

The farce over the FAI €5m 'hush money' was a welcome distraction.

Irish Independent

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