John McGuinness (Carlow-Kilkenny, Fianna Fail)
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Are the minutes of the meeting of 12 June 2014 agreed? Agreed.

No. 3 is correspondence received since our meeting of Thursday, 12 June 2014. No. 3A is correspondence from Accounting Offices and-or Ministers. No. 3A.1 is correspondence dated 10 June 2014 from the Secretary General, Department of Education and Skills, in relation to matters arising from our meeting on 15 May 2014, to be noted and published. This correspondence relates to CIT and other matters. As a further report from the Department of Education and Skills remains outstanding, we will hold that correspondence until the full response has been received. Members can then discuss it. No. 3A.2 is correspondence received on 10 June 2014 from Mr. Martin Whelan regarding social housing arising from our meeting on 29 May, to be noted and published.

No. 3B.1 is correspondence dated 15 April 2014 from an anonymous source regarding Kilmainham Estates Office, to be noted. A response on the issues raised is awaited from the HSE.

No. 3B.2 is correspondence dated 18 June 2014 from Ms Mellissa English, Parliamentary Legal Adviser, regarding a request from the committee to seek legal advice in respect of two applications for compellability, to be noted. Arising out of this reply, we will now ask the Office of the Parliamentary Legal Adviser to assist the committee in putting together a robust response to the two letters we received from the Committee on Procedure and Privileges last week.

Seán Fleming (Laois-Offaly, Fianna Fail)
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Should we consider getting external advice in relation to the drafting of these replies? We are dealing now with the new legislation. Everything about it thus far, including the terms of reference and the role of CPP and guidelines on compellability, is all in-house I believe the Oireachtas would benefit from having somebody outside of its employ-----

John McGuinness (Carlow-Kilkenny, Fianna Fail)
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That is the question that was raised last week. The response to the request for senior counsel was that the Office of the Parliamentary Legal Adviser of the Oireachtas can put forward the appropriate replies to both of the letters.

Shane Ross (Dublin South, Independent)
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Am I correct that what we are speaking about is the letter from Ms Mellissa English to the committee?

John McGuinness (Carlow-Kilkenny, Fianna Fail)
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Yes.

Shane Ross (Dublin South, Independent)
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What has to be decided is our response to that letter. Do we accept what Ms English says in her letter?

John McGuinness (Carlow-Kilkenny, Fianna Fail)
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That is the final decision of the Office of the Parliamentary Legal Adviser. Therefore, Ms English or that office will provide the response to both letters. It must be remembered that that office would have played a central role in the drafting of the new inquiries legislation and as such would know it line-by-line. Presumably, bearing that in mind and the role of the Committee of Public Accounts, that office is adequately equipped to respond to both letters. That is what is stated in the reply from the Office of the Parliamentary Legal Adviser.

Shane Ross (Dublin South, Independent)
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I am not sure we should necessarily accept that. We will need to respond to the Parliamentary Legal Adviser in regard to whether we accept what she says in her letter to the committee in regard to her not being conflicted about Chinese walls. We need to take a view on that.

We need to take a view on that.

John McGuinness (Carlow-Kilkenny, Fianna Fail)
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The members can take a view on that if they wish. My explanation for this is that we received the two letters, the legal advisers referred back to us and told us they are more than well equipped to respond to both of the letters and that they have made a decision that the response can be made in-house. What one can draw from that is that they are not conflicted. They are very independent in respect of the advice that they give. You have raised the letter itself and, as you say, it is for the members to decide how to respond to it. I am suggesting that the response should be that they go ahead and provide the clerk with the legal advice to enable that response to be representative of the opinion of the Committee of Public Accounts and also to put forward a robust case for compellability.

Mary Lou McDonald (Dublin Central, Sinn Fein)
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I do not believe anybody in this committee questioned the PLA, Mellissa English's, independence or the quality of her advice. It is important to state that, so no incorrect inference can be drawn. However, I understood from our conversation at the last meeting that the concern was to get a second opinion. The committee is breaking new ground. There is no established set of experiences with compellability. The legislation is new and the guidelines adopted by the Committee on Procedure and Privileges are new. In that context it is entirely reasonable for the committee to seek outside legal advice. It is not necessarily tied up with the workload of the PLA, although that workload is considerable as we are all aware.

It appears from the letter that there might have been a misunderstanding on two counts: first, that we were questioning the independence or quality of the advice, which we were not; second, that the dilemma was about workload, which it is not. The dilemma for the committee is that it is breaking new ground and must get this right. That is the reason a committee such as this would seek outside legal advice and counsel. I am not sure how we should proceed. We are anxious to get the advice and move this matter along. There is nothing to be gained by stalling matters any further. However, I am not inclined to let it go at that with the PLA. I would be inclined to revert to the PLA again, through the clerk, and explain more clearly the reason we want the advice. Ultimately, we are the elected members of this committee and we are charged with the public responsibility of pursuing matters. Some weight in the decision making must be given to the view of the committee.

Simon Harris (Wicklow, Fine Gael)
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I largely agree with Deputy McDonald's comments. It is clear in Ms English's letter that she says there is merit in senior counsel advice, but I believe we must follow the process. We must do whatever is necessary, which probably involves meeting with the parliamentary legal office to try to progress this to the next stage.

Now might not be the appropriate time, but there is also a broader policy issue here and I do not know how we will rectify it. At some point somebody will have to take the bull by the horns and address the remit of this committee. Standing Order 163 of the Dáil dictates the remit of this committee and it has not been updated in donkey's years. It is not always this committee that is pushing the boundaries, as is often portrayed by politicians who are not members of the committee. It is often the leaders of all political parties in the Dáil who refer issues to this committee, saying that the Committee of Public Accounts should examine the matter. In fact, it was not just members of this committee who called for certain individuals, whom we are now seeking to compel, to appear before the committee. Politicians of all political persuasions and none did that as well. If an expectation is created by the political system that the Committee of Public Accounts is the body to investigate or examine issues, there must be clarity for witnesses, members and the broader political system that it is or is not.

Once this compellability saga comes to an end, one way or another, we must have a serious discussion with whoever the relevant people in the Oireachtas are about our exact remit and whether our terms of reference must be updated or not. If not, we are just wasting people's time by creating an expectation that we can undertake a task and when we try to undertake it competently, we are told we are acting outside our remit. That is becoming a frustration at this stage.

John McGuinness (Carlow-Kilkenny, Fianna Fail)
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Before inviting other members to speak, I draw attention to the paragraph which states: "The committee's request in the second part seeks legal advice on the topic of PAC's legal remit. It is stated the committee wishes to seek senior counsel advice with the input of the Office of the PLA on this matter. I am of the view that there is merit in seeking senior counsel advice on the issue." There are three issues here. There is the issue of our compellability request in respect of the section 39 organisations, the issue of our compellability request in respect of the HSE SIPTU account and the third issue, the general remit of this committee and whether it must be updated because it has been the same for donkey's years.

On the first two, our legal advisers tell us that they can put forward a case for compellability on both counts that will be robust and will challenge the position of the Committee on Procedure and Privileges. On the second count, they are saying to look at the remit and talk to senior counsel about that with them. On the point you make, there appears to be an agreement that we would get senior counsel opinion on it, but on the first two, which are the two applications for compellability, we must tell the legal advisers to go ahead and present us with the letter of response to the Committee on Procedure and Privileges. That case is generally prepared by the clerk and then the legal advisers would look over it, put the legal language into it and submit it to the Committee on Procedure and Privileges. Once we make that response, the Committee on Procedure and Privileges apparently has been given permission to have the advice of a senior counsel. Either this committee or the Committee on Procedure and Privileges will test it with senior counsel advice, so we must put forward the best legal case we can. Our legal advisers say they can do it and that they are competent, capable and independent for it. Then it goes to the Committee on Procedure and Privileges, which will bring in a senior counsel to deal with those two applications.

Separate and parallel to that, we can continue to work on the remit. That is being suggested in the letters.

John Deasy (Waterford, Fine Gael)
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For years in Waterford, if this makes any sense, the port in Waterford was suing CIE until somebody realised, after Ministers got involved to no avail, that they were effectively two State bodies. People asked the very realistic and reasonable question, "Why the hell is the State spending millions of euro, time and energy dealing with something that involves two State bodies?" The people we are writing to are in this building. Notwithstanding everything you have said, which makes a great deal of sense, could the chairmen of the two entities have a chat? Could the clerks of both committees try to figure out some middle ground on this, before we end up in a protracted legalistic nightmare? We are dealing with an entity that is within the walls of this building.

When we get to this point, there may be no return, that is, when we start to involve senior counsel in an exercise like this, in particular one which involves an entity with which we share a building. We are going too far and need to stop and maybe have some conversations privately to see if we can find some middle ground before we go any further.

Robert Dowds (Dublin Mid West, Labour)
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I support what Deputy Deasy suggested. I am not sure what he suggests will work but it should be tried. The bottom line, as far as I am concerned, is that it is really important this committee can compel witnesses where the spending of public moneys is concerned. Whether they are section 38 or section 39 bodies or Departments is irrelevant, if it involves the spending of public moneys. I would like us to be in a situation where we can compel witnesses to attend because that is our job. Anything we can do to progress that should be done. What Deputy Deasy suggested should be tried. I have a certain scepticism as to whether it will work but it should be tried before we go down other tracks.

John McGuinness (Carlow-Kilkenny, Fianna Fail)
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Are members agreed on plan A, as outlined by Deputy Deasy? If that does not work for any reason, plan B is to submit our case through the parliamentary legal adviser.

Shane Ross (Dublin South, Independent)
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I agree with plan A. It is a very good suggestion from Deputies Deasy and Dowds that the Chairman should talk the Ceann Comhairle. However, I would point out that the Committee on Procedure and Privileges has got itself a senior counsel. We should also have a senior counsel if we are to get into any sort of court conflict with it. There are problems. The parliamentary legal adviser was at pains to point out in her letter that she was not conflicted. I am not a great believer in Chinese walls. I am afraid that even with the best will in the world, it is very difficult to justify them. I think we are heading towards a situation where we may get into conflict with the Committee on Procedure and Privileges, which should be avoided if possible. However, we should not be in legal dispute with it on an unequal basis - in other words, it should not have access to senior counsel if we do not have it.

It is not so much that the parliamentary legal adviser's office is conflicted, because it is advising both sides, but what we are looking for here - this is a very important point - is an expert in constitutional law. If the Committee on Procedure and Privileges gets an expert in constitutional law and if we are arguing with it, we should also have an expert in constitutional law.

John McGuinness (Carlow-Kilkenny, Fianna Fail)
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If one reads the letters from the Committee on Procedure and Privileges carefully, they are asking questions of us, including who we want to invite in and who the witnesses are. That would have to be considered before giving compelability because it is making a serious decision. On receipt of our reply, then the in-house senior counsel, which goes half way towards meeting what Deputy Deasy suggested, will look at it. Regardless of what happens, that response has to be made. The clerk will contact the clerk of that committee to see if we can arrange a meeting between the clerks and the committee Chairmen but I think-----

John Deasy (Waterford, Fine Gael)
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If other people want to be at part of that meeting to make it cross-party, it should be done in that way.

John McGuinness (Carlow-Kilkenny, Fianna Fail)
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We have to ask first.

John Deasy (Waterford, Fine Gael)
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Fair enough but if they agree to it-----

John McGuinness (Carlow-Kilkenny, Fianna Fail)
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If they agree to it and then-----

John Deasy (Waterford, Fine Gael)
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Okay.

John McGuinness (Carlow-Kilkenny, Fianna Fail)
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-----the make-up of it is fine.

John Deasy (Waterford, Fine Gael)
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Make it up before we get all lawyered up. We should try that.

John McGuinness (Carlow-Kilkenny, Fianna Fail)
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I think that is what we should do and allow the clerk to engage with the parliamentary legal adviser to devise the response so that two things can happen together and we are not wasting time. It is important to do that. Arising from this morning's meeting, we can make contact with the Committee on Procedure and Privileges and do as requested by Deputies Deasy and Dowds and take that common sense approach. Separate from that, we can prepare our response to the questions that have been asked in the letters from the Committee on Procedure and Privileges and then take it from there.

Shane Ross (Dublin South, Independent)
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That is fine.

John McGuinness (Carlow-Kilkenny, Fianna Fail)
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Is that agreed?

Áine Collins (Cork North West, Fine Gael)
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That is agreed but I have one further request. In the letter received from Ms English, she said senior counsel advice to the Committee of Public Accounts is necessary to see what our remit is but she said she would prefer to wait until after the compellability issue is resolved. Would it be possible to run all three together?

John McGuinness (Carlow-Kilkenny, Fianna Fail)
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No. When the decision is made by the Committee on Procedure and Privileges, after its consultation and if it goes that far with senior counsel, we will only then know what it views as our remit because the argument is that we are within the remit. Then there is an argument that we are testing the boundaries here. After that, we will know exactly what needs to be addressed in the context of Standing Order 163. They are the steps that have to be taken. We can take the first two steps immediately and then the final step as to the remit of the committee. If that needs to be changed, we will get an application together for a change. That goes to the Committee on Procedure and Privileges also. Are we agreed on that?

Mary Lou McDonald (Dublin Central, Sinn Fein)
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Just as a rider to that, I think it is necessary for us nonetheless to respond to Mellissa English's letter just as a matter of courtesy to her because I sense there might have been a bit of crossing of wires. It is important that, as a committee, we set out acceptance of the independence and quality of the advice but also explain our perspective on it, given the fact this is new terrain, and also assert the right, notwithstanding the quality of the staff and the advice offered, that it should be taken in the spirit in which it is intended, when a committee asks for outside advice. It should not prompt a response that is based on any kind of defensiveness because that is absolutely unnecessary. I think, as a matter of courtesy to the woman, we should respond in that spirit.

John McGuinness (Carlow-Kilkenny, Fianna Fail)
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We will do that.

No. 3C is documents relating to today's committee meeting, including briefing papers from the Department of Transport, Tourism and Sport, the RSA and Mr. John O'Brien. No. 4 is reports, statements and accounts received since the meeting on 12 June 2014. No. 4.1 is the Ireland-United States Commission for Educational Exchange. No. 4.2 is the Health Service Executive. I draw members' attention to the fact the HSE's annual financial statements for the year ending 31 December 2013 were delivered after our hearing last week. The Comptroller and Auditor General has drawn attention to a number of notes in regard to the accounts, including the ineligibility for medical cards in the context of internal financial control and disclosures. The second one is weaknesses in the HSE oversight and monitoring of grants to voluntary sector providers, the high incidence of failure to comply with relevant procurement guidelines and regulations, the non-recovery of potential income from other EU states and instances of non-compliance with the tax code. That is arising out of the 2013 annual financial statements. I do not know whether the Comptroller and Auditor General wants to comment on any of that.

Mr. Seamus McCarthy:

The matters to which I am drawing attention are all issues which the statement on the internal financial control deals with, where the Health Service Executive has identified that there have been weaknesses. It outlines the scale of the issues and the steps it is taking to try to resolve them.

Seán Fleming (Laois-Offaly, Fianna Fail)
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Is this the third year in a row that we have had a comment from the Comptroller and Auditor General on ineligibility of medical cards in the annual report. I saw it last year and the previous one, where medical cards were held by people who were not in the country, who had left or emigrated, and where doctors were still being paid and sending out letters.

They may have emigrated but the doctors are still being paid and letters are still being sent. According to the 2012 accounts, there were 15,000 medical cards in respect of which nobody knows whether the holders were still in this country. That was a follow-up from the 2011 accounts. Three years later we are still dealing with the same issue. I am not getting into the broader question; this is purely about accounting for medical cards of people who have moved abroad or died. For three years in a row the annual accounts found the issue was not being addressed.

In regard to the non-recovery of potential income from other EU states, I learned from a parliamentary question I tabled yesterday that we get approximately €200 million from the UK Government in respect of people who paid contributions in the UK and are entitled to services from the NHS. As they have retired to Ireland, we are obliged to provide a similar level of cover, including medical cards. Is that money paid to the HSE or the Central Fund?

Mr. Seamus McCarthy:

It is received by the HSE, not the Central Fund.

John McGuinness (Carlow-Kilkenny, Fianna Fail)
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On the issue of non-compliance-----

Seán Fleming (Laois-Offaly, Fianna Fail)
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The medical cards issue, three years in a row.

Mr. Seamus McCarthy:

A tax audit of the HSE has been conducted. It has been ongoing since 2012 and while a final resolution has not yet been reached with Revenue, I think it is imminent. The matter has been flagged as yet to be resolved.

John McGuinness (Carlow-Kilkenny, Fianna Fail)
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In regard to the accounts, we might ask the HSE for a note on the procedures followed in respect of the Haddington Road agreement and the appointment of people in the context of a lower grade covering for a higher grade, the cost of that and the procedures that have been put in place in regard to how those posts are filled. Who verifies that the HSE is complying with the guidelines set out under the Haddington Road agreement, particularly in respect of west Kildare and Wicklow?

Simon Harris (Wicklow, Fine Gael)
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While we are dealing with the HSE, has the committee received a copy of the report by the HSE interim administrator into the CRC?

John McGuinness (Carlow-Kilkenny, Fianna Fail)
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No, that report was promised for the end of May or the beginning of June.

Simon Harris (Wicklow, Fine Gael)
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We are still in June but the HSE has announced its intention to publish the report at 12.30 p.m. today. At last week's committee meeting, the director general of the HSE advised the committee that he intended to issue the report to us earlier this week. Given that we have been partners on the issue and that the reason for the existence of the interim administrator is because of the heavy lifting done by members of this committee in terms of posing difficult questions to the board of the CRC and its former chief executives, I wonder why the HSE has not lived up to its commitment to provide a copy of this report, which it has been sitting on for two weeks. I welcome that it is issuing the report today because it should be published but I do not understand why we have not already received a copy.

Robert Dowds (Dublin Mid West, Labour)
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I would add one rider to what Deputy Harris has said. The CRC has moved beyond having an interim administrator to appointing a new CEO and, I think, a new board. I wonder why we have not received the report.

Simon Harris (Wicklow, Fine Gael)
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It does not take away from the fact that we still have work to do. The committee secretariat has engaged in extensive contacts with former board members and received agreement from former board members, as well as Mr. Kiely and Mr. Conlan, that they will attend the committee. This is a long awaited report on matters that have done damage to the sector far beyond the CRC. Why have we not yet received a copy of the report even though we were given a commitment to this effect?

John McGuinness (Carlow-Kilkenny, Fianna Fail)
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The clerk to the committee was in regular contact with the HSE to determine when the report would be provided but he was not given a clear indication on when it would be published. It is news to me that it will be published at 12.30 p.m. today. The agreement was that the report would be provided to the committee. It is not the first time that the HSE has published information while the committee was in session. It is a matter that Deputy Fleming raised on a number of occasions and the same thing is happening again. I do not know whether we can check with the HSE now as to whether it is coming directly to us at 12.30 p.m. or what is meant by publication. Is it to be widely disseminated?

Simon Harris (Wicklow, Fine Gael)
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I think it should be widely disseminated and fully published for everybody to see. I wonder why the commitment to provide it to the committee earlier this week was not fulfilled. I hope it is not the result of our robust exchanges last week.

John McGuinness (Carlow-Kilkenny, Fianna Fail)
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We will check that.

Áine Collins (Cork North West, Fine Gael)
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Does the Chair know when the report was finalised?

John McGuinness (Carlow-Kilkenny, Fianna Fail)
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We were advised that it was finalised and given to Mr. O'Brien, who told us last week that, due to his workload, he did not sufficient time to study the report but that he would do so and then release it to us early this week. We will check with the HSE as the meeting proceeds.

We will proceed to No. 5. Members agreed the work programme last week. The Department of the Environment, Community and Local Government will be with us next week. Do members wish to raise matters in this context?

Simon Harris (Wicklow, Fine Gael)
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Is it still the intention that we will have a meeting to discuss the CRC on 3 July? Will that meeting involve the HSE interim administrator or the former board members?

Clerk to the Committee:

The intention was that we would meet both parties in separate sessions. We were waiting for the report, which we had assumed would have been provided. We provisionally booked that date for the meeting. If the report is being published today, we will probably proceed with the meeting on 3 July.

John McGuinness (Carlow-Kilkenny, Fianna Fail)
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Is that agreed? Agreed. Depending on the nature of the report, we might change the date because we need to see the report in order to respond accordingly. Next week's meeting with the Department of the Environment, Community and Local Government will deal with chapter 4 - Vote accounting, chapter 10 - central government funding of local authorities, chapter 11 - costs of land remediation and Vote 25 - Environment, Community and Local Government.