Saturday 17 August 2019

Let's be realistic with our expectations for the IBRC inquiry

If the Coalition made a mistake, it was one made on a number of occasions before
If the Coalition made a mistake, it was one made on a number of occasions before

Shane Coleman

Listening to the furore generated by the disclosure that the IBRC inquiry had run into difficulties, it's hard not to think of Harry Enfield's brilliant 'Scousers' sketch and its catch cry of "calm down, calm down".

There is a problem here, absolutely. Anything stopping a commission of inquiry going about its business needs to be quickly addressed.

But talk of it being a major crisis and a huge embarrassment for the Coalition looks completely overblown. If this is a crisis, then we risk living in a permanent state of national emergency.

The central charges being levelled at the Government are that 'somebody should have realised there was a difficulty before now' and that this is a total mess, massively delaying the inquiry's final report.

The first is an easy criticism to make. But without the benefit of hindsight, does it actually stand up? If it took the commission chairman Mr Justice Brian Cregan four months in the role before he could be in a position to communicate there was a problem getting access to crucial records, why should anybody have anticipated this difficulty in advance?

It has been argued that any reading of the 2004 legislation establishing such commissions of inquiry shows it hedges the issue of compellability.

There are powers to compel, but not if it breaches privilege or a duty of confidentiality. But legal experts point to case law and argue that, on the grounds of public interest, issues of privilege or confidentiality could have been overridden.

That's not to say that Mr Justice Cregan is wrong, just that some in the legal profession believe he is taking a strict line on the legislation, so far as it concerns the subject matter of his inquiry. And that clearly this isn't straight forward.

The specific question of banking confidentiality may not have come up in the 11 previous commissions of inquiry carried out under this legislation.

But it would be surprising if the general issues surrounding privilege or confidentiality hadn't arisen at some stage, particularly given the sensitive nature of some of the inquiries.

For this reason, the criticism of the Attorney General Marie Whelan seems unfair and certainly premature.

There have certainly been major questions for the AG arising out of an entirely separate commission of inquiry (Fennelly). But in this case it's hard to see how she could have foreseen problems would arise with legislation that has worked effectively for more than a decade.

Bear in mind, this legislation, when it was being drafted, caused considerable nervousness in the office of the Attorney General.

It was seen as potentially clashing with the landmark 1971 'Re Haughey' Supreme Court case.

That case copperfastened the rights of those who were the subject of any inquiry.

Despite that, the legislation hadn't run into difficulties. Until now.

Which brings us to the second charge against the Government - that the report now won't be finished until after the General Election, which suits the Coalition just fine. Of course, this legal obstacle has led to delays.

However, assuming the Government is in a position to bring through emergency legislation in the coming days - tweaking the 2004 Act to clarify a commission of inquiry can compel disclosure in the public interest - it's hard to see how the delay will be substantial.

The Government finds out about the problem at the end of one week and deals with it by the end of the next - hardly a massive deal.

If the emergency legislation isn't possible, that would be entirely different.

But legal experts believe this won't be a problem because it's not dealing with constitutionally protected privilege.

If the Coalition made a mistake, it was one made on a number of occasions before.

Under pressure, to deal with disquiet over IBRC, the Government made the scope of the inquiry too broad.

The inquiry's terms of reference covered not just the sale of Siteserv to businessman Denis O'Brien's Millington and any deal involving a writedown of more than €10m, but also any other transaction likely to cause "public concern".

Given the mound of paperwork involved in all these cases, it was never realistic to expect a report before the end of the year - and therefore before the General Election, given inquiries' reports are never published in the midst of an election campaign.

Did the Government go for such broad terms of reference, as some have suggested, because it wanted to ensure the inquiry took as long as possible, effectively kicking the can far down the road?

Or did it do so because it was under huge pressure after an ineffective initial response to the controversy and it wanted to publicly demonstrate that it would do whatever was required?

The latter seems a far more plausible explanation, though it won't satisfy the conspiracy theorists.

Mostly in politics though, there's actually no conspiracy. And sometimes (though sadly less frequently), there isn't even a cock-up. Unforeseen, though very serious, issues just arise.

Unless some new information emerges, this looks like one of those cases. Assuming it can be quickly dealt with, it should be equally quickly forgotten about.

Shane Coleman presents the 'Sunday Show' at 10am on Newstalk

Irish Independent

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