Despite calls for representatives of the ECB, such as its former head, Jean Claude Trichet, to appear before the Banking Inquiry, the ECB has indicated it will not participate. However, Irish banking and political figures are likely to come under public pressure to give evidence and may be compelled to do so. We consider below the terms of reference and framework for the Inquiry, which have been adopted since our previous article on plans to establish the Banking Inquiry.
The proposal which was put to the Oireachtas contained further detail on how the Inquiry will be run, beyond the general framework in the terms of reference. The Banking Inquiry will comprise two phases: the “Context” phase, to frame the broad context and background of the Inquiry, and the “Nexus” phase, to identify the key questions, seek and analyse evidence on these points, and prepare a report.
Public hearings for the Context phase are set to run from December 2014 to January 2015 and the Nexus phase hearings will run from April 2015 to September 2015. The Inquiry is expected to issue its final report by November 2015 - in advance of the next general election. However, concerns have been raised that an early general election could bring an end to the Inquiry.
The Oireachtas has confirmed that the Banking Inquiry will be a Section 7 Inquiry, as provided for under the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013. This type of inquiry is limited to recording and reporting evidence, making findings of fact and making recommendations. However, any findings of fact must not have been contradicted in the Inquiry or any other proceedings before a court, tribunal or commission. As a result, the ability of the Banking Inquiry to make findings of fact will be limited.
The scope of matters to be addressed in the Banking Inquiry includes Irish, EU and International policy, early warnings and contrarian views, banking systems and practices, regulatory and supervisory systems and practices, and crisis management systems and policy responses. The proposal put to the Oireachtas also noted that the Banking Inquiry will examine a time period from 1992 (ie, the date of effective implementation of Basel I, which made changes to capital requirements for banks) to 2008, although this timeframe did not form part of the formal terms of reference.
In respect of the disclosure of documents, the Banking Inquiry will make use of Dáil Standing Order 83, which grants the power to take oral and written evidence, accept written submissions, and to summon persons, papers and records.
The persons to be invited to give evidence are expected to include, but are not limited to, employees of credit institutions and their external auditors, recipients of commercial loans, external auditors, regulatory bodies such as the Central Bank, members of the Cabinet and high-ranking civil servants, EU, IMF and ECB officials, and members of the media. While the ECB has indicated that its representatives will not participate, the Banking Inquiry will have powers to compel witnesses who are within Ireland, or who are Irish citizens, to attend.
We understand that the Banking Inquiry has made preliminary contact with potential witnesses.