Author: Gavin Sheridan

This is an analysis piece I wrote on March 15 for the Sunday Business Post to go with a story around a PWC report in late 2008 that analysed the loan books of Irish banks:

It’s now more than six years since Ireland made a decision which would have devastating consequences on its people. Yet amazingly after so much time has passed, we still know relatively little about how the crisis came about, and who exactly was responsible.

Today the Sunday Business Post names names around tens of billions of euro lent to a very small but influential group of people during the property bubble.

These names and the exposures they had have, up until now, been rumoured or censored by the state. But citizens have a right to know who they effectively bailed out through guarantees, a bad bank and bailouts.

Whose interests has secrecy served? Certainly not the interests of citizens. And when consultants are hired by Government to find out some of what happened, why do only a small group of people see it, and then let it languish on a shelf thereafter? How many other reports will never see the light of day?

The Banking Inquiry only recently commenced hearing evidence. The process so far has been dismal. With so many members of the inquiry apparently needing their moment in the spotlight, it seems almost impossible for them to ask any probing questions at all. By the time a witness is beginning to say anything interesting, time is up and we move on to another set of often unrelated questions. It often feels like everyone is in a hurry to get the inquiry over with.

It’s also four years since Ireland requested a bailout, which was a direct consequence of the decision made two years earlier. Much of the media focus has been on that and on the guarantee decision itself – and while the circumstances around it are interesting to journalists, and often make for dramatic re-telling – it was not the guarantee decision that really sank the country.

It was the property bubble that preceded it that led us down that path in the first place.

And it is this issue we have yet to seriously tackle. Who benefitted from the largesse of cheap and easy money from the Irish banks? How did so much of the loan books of the banks end up with such a small group of people? In a country this small, how connected are those people to the people who were in power from 1997 to 2011?

What politicians, and civil servants, were responsible for pouring fuel on the fire of an out of control property bubble – the people who made the policy decisions both around property development and banking regulation? How close were bankers to politicians, and in what way? How close were property developers to politicians, and what policy decisions made in their favour?

But if there’s one thing that stands out in efforts to understand the crisis it is this: secrecy.

And this is not just secrecy in Ireland. Between 2011 and 2014 I along with a legal friend, Fred Logue, spent considerable time and effort trying to obtain the so-called Trichet letter, sent to then Finance Minister in November 2010, in which ECB President Jean-Claude Trichet threatened Ireland with consequences if we did not do as we were told.

The letter was ultimately released by the ECB (and leaked to the Irish Times in advance), but only after two appeals processes lasting three years, lengthy submissions as to why it should be released in the public interest, and the intervention of the European Ombudsman to plead with current ECB President Mario Draghi to facilitate its release.

This was not an exercise by the ECB in using transparency to gain public trust, it was an exercise of being embarrassed into it. Not alone that, but the letter in which Lenihan formally sought the bailout was released without issue by the ECB, but its release was categorically refused by the Department of Finance – perhaps they were just too embarrassed by the whole thing – or else it’s that culture of secrecy.

And Ireland is by its nature a secretive country. And secrecy breeds corruption, maladministration and incompetence. We talk endlessly about transparency and accountability, but we very rarely see it. It makes for good sound bites, but countless government, tribunal or consultant reports gathering dust on shelves are testament to our complete inability to act.

If we are to learn anything from the crisis, we must begin throwing up the doors on the past immediately. This must include the public understanding and having copies of every report generated as a result of the crisis, and every document surrounding the decisions made by Cabinet over the preceding decade.

We are the ones paying for the consequences of decisions made at the highest levels of Government, the least we can ask for is why – and for whose benefit – those decisions were made. It is time that the unvarnished truth is allowed to emerge.

We were very interested to read a blog post/speech by Public Expenditure & Reform Minister Brendan Howlin yesterday. It contains some very curious statements, and we assume the blog post was not actually written by Howlin (we’d be happy to find out), but rather by recently appointed press officer(s).

The post refers indirectly to this blog and to me, somewhat unflatteringly.

Indeed, on This Week on RTE Radio at the end of last year, two prominent FOI experts essentially found nothing positive to say about the new Freedom of Information Act in the course of an extended discussion on the Act.

Of course, a propensity to criticise often seems inherent in such opinion formers – given the perfectly understandable need to continue to sustain and promote their causes.

I don’t think anyone in political life – certainly no-one in political life for the length of time I have – would expect plaudits to replace the usual brickbats on such a contentious issue as FOI.

Anyways I’ll keep this brief. But before you start, keep this in mind: In 2011 after coming to power, the Government promised to restore the FOI Act – this would mean abolishing FOI fees altogether. This promise was and is broken. Appeal fees remain.

Anyways: the claim in the speech is centred on this statement:

“…what is disappointing is the degree to which the real story at the heart of the FOI reforms is at risk of being lost… This is a story which even in broad brush strokes exemplifies real democratic reform in action:-“

To which we say: rubbish. Let’s take each point in turn:

Claim 1.The publication of the Government’s policy proposals for consultation and pre-legislative scrutiny which allowed a broad range of stakeholders feed in their views on how the legislation could be strengthened which were an important influence on the subsequent drafting of the Bill.

1. We were one of the stakeholders. We made submissions to the Oireachtas committee, in writing and in person. We also attended some of the hearings, or livetweeted the proceedings. In general the process was pointless. Civil society people came in, submissions were made, the committee wrote a report. I can’t see much of what the committee recommended (and in some places it contradicted itself) actually made it into the Bill. Of course I’d be happy if someone could point this out to me.

Claim 2: The very positive and constructive debate in the Oireachtas largely on a non-partisan and cross-party basis on the detailed provisions of the legislation and the important amendments that flowed from this examination of the Bill.

2. Again. I can’t see much that happened here either. Can you point us to some good examples? The most controversial elements of the Bill – the definition of data, the retention of fees, the definition of public authority, were kept the same throughout.

Claim 3: The establishment of an expert external group involving FOI advocates and FOI experts to advise on the practical measures to improve the operation of our FOI regime. The subsequent Code of Practice for FOI for public bodies drew heavily on this group’s recommendations.

Yea, we were on that external group too. We chatted several times and wrote a report (we didn’t ask for, get or want any money for this work). Whether the actual Code of Practice will be implemented remains to be seen.

Claim 4: The engagement with civil society representatives through the Open Government Partnership (OGP) process on the case for change in relation to fees and the concrete result which followed.

This is an interesting claim and one that requires more explanation.

It glosses over how the fee issue became an issue at all. That an amendment to increase fees was inserted in November 2013 at committee stage, that it was never mentioned for the previous 18 months despite the Department carrying out a survey on the issue in 2012, that it did not appear in the draft heads of bill or in the Bill itself (making a complete mockery of all the vaunted pre-legislative scrutiny processes mentioned earlier). Or that over 3 days that Department and the Minister were ridiculed by civil society (including us) for relying on a) faulty research to justify fees b) subjected to criticism by several international NGOs c) that the premise for fees being retained was false and d) that the fees were probably illegal. And that the Minister was then forced through sheer embarrassment to withdraw the amendment.

No doubt the Department felt that this amendment could be simply added, and it wouldn’t be noticed. The insertion of that amendment paints a truer picture of the real intentions of mandarins than any press statement or speech by Howlin ever could.

That the Government spent 3 days putting out erroneous (if not outright bogus) press statements, and where Ministers, including the Taoiseach, ridiculed us as essentially “crazies” for attacking the increase in fees also represents a more accurate picture of how this really happened.

Is this an example of “real democratic reform in action”, as Howlin claims?

If you count broken promises and underhanded tactics to undermine the Bill entirely by increasing fees, and then u-turning on that issue when it becomes politically difficult, then yes, it is a perfect example of democratic reform in action.