Banking Inquiry 2014
It has been a bruising
couple of weeks for the embryo banking inquiry. First the Government put the
ball in its own net with its shambolic handling of the nominations from the
Seanad. Then Fianna Fáil raised fresh doubts about its efficacy, after the party
said the committee setting up the inquiry had received legal advice putting
cabinet deliberations out of bounds.
That all played to the
Fianna Fáil narrative which holds that no-one is keener to see a robust banking
investigation than Micheál Martin but that the Government is going about it the
wrong way. Cue headlines claiming the inquiry would be hamstrung, and could not
now get to the bottom of things.
The reality, though, may be
a little different.
I am told that cabinet
meetings are indeed subject to constitutional confidentiality, but that the
advice was surprisingly positive in related matters. For instance, it seems
committee members were told that memos to cabinet from government departments
are compellable, as are detailed decisions made by ministers. More
interestingly, it seems that any briefings to cabinet by consultants or
officials, or bankers for that matter, are too, as the constitutional
definition of a cabinet meeting is quite a narrow one.
It seems the view is that
only ministers can participate if a meeting is to be given cabinet status. The
interpretation taken from that advice led one committee member to observe that
“if there’s a waiter in the room then it ain’t a cabinet meeting”.
So, it may be that the more
ministerial meetings there were, the more documents there will be for the
inquiry to examine, and if there is not a paper trail, more witnesses to
examine. Committee members on all sides agree that they will be able, for
instance, to quiz the senior bankers and all involved in those early morning meetings
ahead of the guarantee.
So what time span will it
focus on?
Fianna Fáil wants a remit
that stretches well beyond the bank guarantee and includes actions taken by the
present Government. Others want the investigation to examine matters stretching
back, as one member put, to the day the Chinese invented banknotes. Speaking to
those involved, the sense is that the time available will limit the time
examined.
Oral hearings begin in
January 2015 with a November deadline. That is pretty constrained, and may mean
that the inquiry will be defined by when the banking crisis began and, more
problematically, by when it could be said to have subsided. That is a difficult
call given that you and I are still feeling its effects.
And finally will it be a
bonanza for the Law Library? Well, there will be work for lawyers, but I am
told those who reach for their learned friends will not get their costs that
easily.
The argument here is that if
the inquiry cannot make adverse findings against you, why would you lawyer up
in the first place?
The first hurdle for
committee chair Ciarán Lynch, though, is to sort out the tricky issue of the
time span and the issues to be scrutinised. However, with Fianna Fáil digging
its heels in and already crying foul, that might not be so simple.
