Banking Inquiry - could the UK Iraq Inquiry act as a model?

gan ainm: Pat Rabbitte’s post on the Banking Inquiry is most welcome. There are many angles which need to be covered, and obfuscation by some misguided public officials may be one. It appears the Banking Inquiry will consist of two separate reviews, followed by a Commission operating under the Commission of Investigation Act 2004. Subsequently, there may also be involvement by an Oireachtas Committee.

For all levels of the Inquiry, the issue of access to relevant documentation and information will be critical to its overall success. One area of documentation and information which is critical to the work of the Inquiry is the area of legal advice – its content and the extent to which it was acted upon.

As the Inquiry is to be conducted under the Commission of Investigation Act 2004, there will not be a legal right of access to any material which is protected by legal privilege. Parties whose co-operation is sought by the Inquiry may opt to waive privilege and allow access to, for example, legal advice received.

In the case of private sector bodies (the banks), it is very unlikely that privilege will be waived. However, in the case of the State bodies concerned (e.g. Departments of Finance, Taoiseach, Central Bank, Financial Regulator) there is a strong case that privilege should be waived (at least partially) in order to allow the Inquiry the fullest possible understanding of the actions of the State bodies throughout the period under examination. It is vital that the Opposition ensures that the Government agrees, in advance, to ensure, in so far is possible, that all public bodies waive such rights.

This is because it is fairly certain that the State bodies will resist any call for access to their legal advice much of which, presumably, will have come from the AG's Office. In the past, Departments have refused access to legal advice when sought by, for example, an Oireachtas Committee. Typically, the State bodies act as if it were not open to them to waive privilege. This is a misrepresentation.

We can also confidently expect the argument to be made by some senior public servants that waiver of privilege will be commercially damaging to the interests of the State and/or that it will impact negatively on the capacity of the State in the event of it being involved in litigation with any of the banks or former banking personnel. In fact, provision of access to legal advice by the State bodies need not necessarily involve a full waiver of privilege – though this is quite a technical area – and it is probably the case that such provision would not entail a full waiver such as would remove the privilege generally.

In the UK, the current Iraq Inquiry has been given access to all documents that it considers relevant to its work. This includes access to documents and information which is otherwise protected by legal privilege. There are restrictions on the extent to which the Iraq Inquiry may disclose the content of such privileged material; but the key point is that the material is available to inform the Inquiry. In practice, a great deal of material has entered the public domain notwithstanding that it is protected by legal privilege. The former Attorney General has given evidence in public to the Inquiry as have a number of other senior Government legal advisers.

The model of the Iraq Inquiry – in so far as it concerns the provision to the Inquiry of material covered by privilege – is a model we might well follow with the Banking Inquiry. To achieve this, Government will have to face down the undoubted opposition of the AG and of the legal establishment generally.