Banking inquiry may not have powers to investigate Cabinet meeting on night of bank guarantee

As the special Dáil committee inquiring into the banking crisis meets for the first time today, there are fresh doubts as to whether it will be able to investigate the details of what occurred on the night of the bank guarantee in 2008.

Guidelines on compelling witnesses and evidence published by the Oireachtas this week refer to two sections of the legislation which set up the special parliamentary inquiries.

The guidelines published by the Dáil Committee on Procedures and Privilege raise the possibility that the Committee of Inquiry into the Banking Crisis, chaired by Labour TD Ciarán Lynch, might have difficulty investigating what many consider lies at the heart of the crisis, the Government decision at the end of September 2008 to give a blanket guarantee to the five principal financial institutions.

Section 71 and section 86 of the House of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013 preclude an Oireachtas committee from compelling evidence, either oral or permanent, about Cabinet discussions, or indeed questions being asked about Cabinet discussions.

This is in accordance with the protection given to Cabinet confidentiality in article 28 of the Constitution

Today’s private meeting will see the committee try to re-establish its authority following two weeks of rows and division over its membership.

The 11-member committee will begin work on deciding the terms of reference and preparatory work that will be needed before hearings get under way towards the end of this year. It is the the first parliamentary inquiry to take place under new legislation which gives Oireachtas committees increased powers of investigation and compellability.

The inquiry is expected to focus on the circumstances surrounding the banking collapse in September 2008, including investigating the events that preceded it, as well as what occurred afterwards.

In a brief statement last night, Mr Lynch said the committee's initial responsibility would be to prepare a detailed proposal for the banking inquiry including terms of reference for submission to the Committee of Procedure and Privileges (CPP) of both Houses. "It is then a matter for the Committee on Procedures and Privileges and the Houses to approve the inquiry proposal and confirm the committee membership," he said.

Mr Lynch said he believed there was great potential for the committee to be in a position to hold a fair and balanced inquiry.

One of the other issues that may cause contention is the time span for the inquiry with the two Fianna Fáil members in particular pressing for it to include the actions of the current Government. Its TDs and Senators have contended the Government want it to be a political trial designed to target the previous Fianna Fáil-led government and former taoiseach Brian Cowen.

A member of the committee, Fianna Fáil senator Marc MacSharry, told The Irish Times ‘Inside Politics’ podcast yesterday that the terms needed to include the actions of the Coalition right up to the present day.

He also said that the late Brian Lenihan, who was then minister for finance, had told him that it was his expectation that secured and unsecured bondholders would be made to pay a portion of the debt.

Once the terms of reference have been decided, the next phase of the investigation will involve gathering relevant information and then analysis before oral hearings can be held. There are expectations that they might get under way by the end of the year.