Gerald Nash (Louth, Labour) | Oireachtas source

By now both the politicians and those who report on us have recovered from the bout of bank holiday giddiness that took hold the weekend before last. Talk of a constitutional crisis that threatened to put the organs of State at loggerheads was very quickly and calmly dispelled by a few quiet words from Mr. Justice Binchy. Like everybody in this House, I welcome the statement by Mr. Justice Binchy that it had never been his intention to restrict utterances in the Dáil or to restrict the reporting of the Dáil. That statement cleared the air and was very useful. That so-called crisis over, there remains serious work to be done. The Government has decided to establish this commission of investigation because it accepts there are matters of significant public concern that should be investigated.

The starting point is that IBRC is no ordinary bank. After the bank guarantee of 30 September 2008 and the subsequent nationalisation of Anglo Irish Bank, the debts and obligations of that bank became a burden on the State. We have poured €34.7 billion into IBRC. It has always been a matter of serious public concern that the bank is managed, and is seen to be managed, so as to minimise in so far as practicable the ultimate and unavoidable costs to the taxpayer. Anglo Irish Bank has been buried, and sent on its way with promissory notes.

At the best of times, banking is much more an art than a science and banking during a crisis is not governed by any conventional rule book. I have no doubt that if each of us were individually in charge of second-guessing the decisions of IBRC, we would very quickly have 166 separate judgments on the decisions it made. The idea that there is some conventional standard available, against which we can judge the wisdom of each and every settlement, is naive. We can only measure the general thrust of policy and the general professionalism of its execution.

I agree with the Minister for Finance that we have not as yet had any proof of wrongdoing. However, I also agree that there has been significant public concern. Sometimes inquiries discover proof of the wrongdoing we had all expected to see uncovered and sometimes they allay our misgivings and provide assurance that fears were misplaced. At this stage, I withhold judgment on what will be uncovered.

Mr. O'Brien swore in the High Court last April that:

I have extensive dealings with national and international institutions. My dealings with these institutions are confidential not only to me but also to the various institutions. To put it bluntly, I say and believe that these institutions would not like to see details of how they deal with customers such as me disclosed to the public domain. A belief on the part of these institutions that such eventuality was a possibility [...] would, I believe, impact on their willingness to engage with me and deal with me in relation to my personal, private and confidential banking arrangements.

On the face of it, it seems odd to assert that a bank like IBRC would have a particular problem in seeing disclosed the details of how they dealt with customers such as Denis O'Brien. It raises the immediate and natural question in the public mind as to what is so particular about the way in which, it is alleged, he was treated.

Did the bank deal with him, or indeed other major customers, in any way differently from its other customers and, if so, why?

In a paragraph from his own affidavit, Mr. O'Brien summed up what has become the central issue giving rise to public anxiety: the treatment of himself compared to other bank customers. For his part, Mr. Mike Aynsley, the former chief executive officer of IBRC, has denied all suggestions that relationships with key clients were not at arm's length and businesslike. He says that interactions with clients were "with the objective of obtaining as full recovery as possible with as little difficulty as possible". There is as yet no reason to doubt what Mr. Aynsley says. However, it seems that Mr. O'Brien asserted to the IBRC liquidator that he had a verbal agreement with the previous management in relation to the repayment of his loans, although, according to the High Court judgment, the former management of the bank has denied that its discussions with Mr. O'Brien resulted in any such agreement. Mr. Aynsley has sought to clarify matters. He has talked in general rather than specific terms about the potential for rescheduling of payments, about agreeing a strategy for approval by the bank's credit committee, about agreement to a phase one payment followed further negotiation on the balance once the phase one target was met, about expectations that phase two approval might be automatic, and so on.

Yet when it came to Deputy Catherine Murphy's speech, Denis O'Brien's stated position was that she was "materially inaccurate" and "fundamentally wrong" and had used files that were allegedly tampered with, in an "attempt to damage [him] and to gain notoriety and political advantage for herself". Somewhere in all of this there is a coherent narrative, but the media will not extract it; nor will any Oireachtas committee. That is why we need a statutory investigation.

There are legitimate concerns about the continued accessibility of ordinary banking in accordance with the ordinary rules of banking, including client confidentiality. Being a very big customer is not of itself a ground for having details of one's dealings with a State-owned bank publicly aired. Having significant concentrations of media ownership and being quick to reach for one's writ are both, perhaps, traits that cause concern, but, again, they are not sufficient grounds for removing the normal legal protections for customer confidentiality. Therefore, a commission of investigation is the appropriate solution. The Government had already responded to significant public concerns regarding these transactions by directing the special liquidator to conduct a review. That review would have had the particular merit of speed, since the liquidator was on site and had access to all the available materials. However, the Government was right to take account of increased public concern and to appoint instead this statutory commission of investigation. There are two core issues: whether there was any significant loss to IBRC - that is, the taxpayer - and whether there was any improper favourable treatment.

At the heart of our approach as a Government to addressing these issues is the overarching principle of public accountability. When it was nationalised, the bank and its management became, in a broad sense, part of the public service. In managing assets and seeking to minimise liabilities on our behalf, they became public servants and trustees of the public interest. Accountability to the public is an automatic and inherent part of that mandate. I believe the course of action we are proposing to the Dáil today reflects the most appropriate and efficient way of ensuring that mandate is discharged.

We have been told as well that Mr. O'Brien intends to take fresh proceedings to ask the courts "to establish the demarcation between the respective roles of the courts and the Oireachtas". If this second case does go ahead, we should welcome it. I hope this House will ensure that Dáil Éireann is a full party to those proceedings and stands firm in defence of both the constitutionally guaranteed rights of its Members and of the media that report on it.

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