Individual rights under the Constitution are not absolute. Nor are those of property. They can be limited or restricted by the Oireachtas on the basis of the common good. The same holds true for the disclosure of privileged or confidential documents. In the case of Judge Brian Cregan’s inquiry into the sale of State-owned assets by IBRC, the public good requires that citizens should be satisfied that no preferential or “sweetheart” deals cost them money or, if they did, that disclosure and retribution will follow.
Public confidence in the law and in its ability to protect the interests of ordinary citizens against the actions of the rich and the well-connected is a vital element in a functioning democracy. That is why the Government should take immediate action to address concerns expressed by Judge Cregan by amending the terms of the 2004 Commission of Investigation Act that he believes prevent him producing a report of substance.
Just why that legislation should allow for the withholding of privileged or confidential documents is unclear, when the courts may order their disclosure, but it represents a fundamental obstacle to this and future Oireachtas-inspired inquiries. So do limitations placed on the circulation of such documents. Questions have been asked about the legal advice given by Attorney General Máire Whelan and why these flaws were not anticipated.
The issues to be addressed by Judge Cregan were controversial from the outset. Regarding the sale of Siteserv to a company owned by Denis O'Brien and the banking arrangements he enjoyed with Anglo-Irish Bank/IBRC, the media mogul objected to intrusions into his business life and has since initiated legal actions against public representatives and the Dáil's Committee on Procedure and Privileges. Siteserv says it is willing to co-operate with the commission but has yet to hear from it.
A lack of ambition by Ms Whelan to break new ground was replicated within Government where, over a number of months, the Taoiseach Enda Kenny and Minister for Finance Michael Noonan were reluctant to address the sale of Siteserv. Finally, last June, it was agreed that the commission would investigate disposals by IBRC involving writedowns of €10 million or more. The sale of Siteserv and Mr O'Brien's loans with the nationalised bank would be included. In addition, the relationship between IBRC and the Department of Finance and the role of Mr Noonan would be scrutinised.
A requirement that the Commission of Inquiry should complete its report by December appeared to be fanciful at the time, because of the amount of work involved. In view of current difficulties, priority should be accorded to reporting on the Siteserv module, which gave rise to public concerns in the first place.