Controversial act may yet be challenged

Up to Wednesday night, the term “Irish Bank Resolution Corporation Bill” meant only one thing — a €34bn noose around the collective necks of the country’s taxpayers.

Controversial act may yet be challenged

But now we know it as a piece of legislation that could go down in history as actually beginning to loosen the bonds of indebtedness that have been strangling the citizenry.

Or as the authors of the bill, now an act, put it: It is “to provide for the orderly winding up of the affairs of IBRC to help to address the continuing serious disturbance in the economy of the State”.

It certainly caused a serious disturbance in the Dáil when it was produced to TDs at 10.30pm with a full debate and vote scheduled to begin at midnight.

Deputies struggled to get their heads around its 60 pages and infinite consequences, and there will undoubtedly still be lawyers poring over its contents for weeks to come, particularly on behalf of IBRC’s creditors. who may see their chances of getting their money out of its corpse diminishing with each shovelful of soil thrown upon it.

After the usual polite preambles to the act, a meaty section 6 literally lays down the law on what is to become of IBRC and those dealing closely with it.

It brought into effect an immediate stay on all proceedings against IBRC, meaning anyone without an outstanding claim against it is likely to be left standing out in the cold when it comes to trying to get redress.

It also terminated the employment of everyone working for IBRC with immediate effect, turning life upside down for workers who knew the bank would ultimately be winding down but who expected to be at their desks overseeing that process until 2020.

And for those being investigated and/or prosecuted arising from their involvement with IBRC and/or its former incarnation, Anglo Irish Bank, it provided reassurance that they would not be forgotten.

Specifically it said the legislation: “Does not affect any proceedings taken, investigation undertaken, or disciplinary or enforcement action undertaken by the Bank, the Director of Public Prosecutions, An Garda Síochána, the Director of Corporate Enforcement or any regulatory authority, in respect of any matter in existence at the time the Special Liquidation Order was made or other thing was done.”

Neither does it preclude any future investigation, proceedings or actions that have not already begun.

Section 7 sets out the special relationship that the minister for finance and the special liquidator will have. Normally, liquidators are appointed by the courts, hence the term “special liquidator” in this case. The minister gets to decide how much the special liquidator gets paid and may at any time remove his chosen one and replace them with someone else.

Section 8 is an interesting one, predicting as it might reasonably do that there will be attempts by some creditors and customers of IBRC to stop the liquidation process in its tracks.

It states that where such action — seeking injunctive relief as it is called — is commenced in the courts, “the court shall have regard, in determining whether to grant such relief, to the public interest”.

It continues: “In considering the public interest, the court shall have regard to the purposes of the act”. It states that relief should only be granted where there is danger of an injustice but says the possibility that a plaintiff might, for example, be declared bankrupt or wound up is not sufficient to constitute an injustice.

This section is hinted at in the preamble to the act that states:

“The common good may require permanent or temporary interference with the rights, including property rights, of persons.”

It is further developed in section 12 which states that the sale or transfer of any asset or liability held by IBRC can take place without regard for any pre-existing agreement or contract with a third party.

It is this theme, running through the act, which lawyers of those interfered with, will be most inter-ested in teasing out.

Section 13 is another substantial part of the act, giving the minister for finance powers to direct Nama to bid for the assets of IBRC and to “acquire from the bank, such assets, liabilities or obligations on such terms and conditions (including the consideration), as are specified in the direction”.

Nama, more accustomed to acting on its own intelligence, may of course do any or all of this itself at its own discretion if the minister does not issue any direction but the agency has been left clear about how it must respond should the minister coming calling. “Nama shall comply,” it states.

Section 17 has been controversial, as it gives the minister, and any future minister for finance, powers to issue securities whenever he wants at any interest rate he sees fit and subject to any conditions he chooses without prior Dáil approval which some observers have said could be open to abuse and may be unconstitutional.

The legislation may be designed to free us from some of the burdens of debt but undoubtedly, there will be interests keen to through a lasso around it and rein it right in.

Picture: Workers removing the Anglo Irish Bank sign from its headquarters in Apr 2011. The bank has now been liquidated, with Nama set to take over its assets. Picture: Brian O’Leary

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