Oireachtas Joint and Select Committees
Thursday, 27 November 2014
Public Accounts Committee
Business of Committee
We will ask again and insist on having it in writing, as requested by members. I will move to correspondence from Accounting Officers and Ministers. There is correspondence, dated 24 November, from the HSE, following up on the meeting of 6 November 2014, to be noted and published. There is correspondence, dated 26 November, from the Minister for Jobs, Enterprise and Innovation, Deputy Richard Bruton. It is regarding correspondence received from the committee regarding a protected disclosure dossier. We agreed to write to the Minister last week and we are now scheduled to discuss with representatives of the Revenue Commissioners next week its investigation into the Ansbacher accounts. This is the issue that was raised in the protected disclosure. After this, the committee can review whether any further examination is required on its part. Our first port of call is with the Revenue Commissioners and we can decide from that point what is required next. Is that agreed? Agreed.
We can have somebody here to explain it. After we hear from the Revenue Commissioners, we can decide on our next step with regard to Mr. Ryan's submission and so on.
I will move to individual correspondence. There is correspondence, dated 17 November, from Mr. Seán Ó Foghlú, Secretary General, Department of Education and Skills, regarding the code of practice for governance of education and training boards, to be noted. There is correspondence, dated 14 November 2014, received from Mr. Joe Hamill, Secretary General, Department of Arts, Heritage and the Gaeltacht, regarding the Abbey Theatre pension scheme, to be noted and a copy forwarded to Mr. Mark Darley. There is correspondence, dated 18 November 2014, received from Mr. Tom Moran, Secretary General, Department of Agriculture, Food and the Marine, regarding Horse Care Ireland proposal for equines, to be noted and forwarded to Ms Majella Kavanagh.
I will move to correspondence relevant to today's meeting. There is briefing material from Bord na gCon; the opening statement by the chief executive officer, Ms Geraldine Larkin, received on 25 November 2014 from Bord na gCon; and the opening statement from the chairman of the board, Mr. Phil Meaney. All of these are to be noted and published. Reports and statements received to date are detailed in the members' document at section 4.1, 4.2 and 4.3. Is it agreed to note these accounts? Agreed.
Arising from our meeting last week with Mr. Ó Foghlú, we were to remind him of submissions the Department received nearly six months and we are to ask him for a detailed response to the queries. Our work programme has been made available to members. There will be a meeting on procurement to be held in early January.
Clerk to the Committee:
Deputy McDonald raised the issue. The jobs committee has examined the procurement issue and I am working on pulling that into our brief. The finance and public expenditure and reform committee are to examine it next week or the week afterwards. I wanted to leave some time in order to pull in as much information as possible. We will bring in representatives of the Small Firms Association and the association representing companies which provide stationary and related items for schools. It is in the programme but I wanted to allow some time before dealing with it.
A solicitor wrote to us about the cost incurred by the State relative to the Office of the Chief State Solicitor in defending cases that are withdrawn for one reason or another. Like the procurement issue, perhaps we should speak to individuals and the solicitor who gave us information to determine if there is a case to be answered. We can contact them and ask for further information for members. There is a letter dating back some time and it should be followed up. Is the Office of the Chief State Solicitor under our remit?
I suggest that we ask its representatives for an early meeting with regard to the cost and administration of the office, including the cost to the State of mounting cases generally, although not any specific case.
We will then move onto any other business members might have.
In part of the correspondence from Mr. Ryan in respect of his dossier, is his own legal advice from Mr. John Hennessy S.C. on the protection afforded him under the protected disclosures legislation, it is at variance with what we have been told orally by our adviser. This issue has come up at previous meetings. Has the committee done anything to reconcile those positions or get some definitive view? I read Mr. Hennessy's opinion and it is very persuasive in terms of the protection for the whistleblower. I am uneasy, however, that the advice we have from the service in the Houses is directly at variance with it. I am trying to figure out how all that will be straightened out because, whichever way we proceed, we need to be sure the whistleblower is protected under law.
The response to that last week was that the legal advice was sought by the committee from the legal section in the Oireachtas. We got that advice. Mr. Ryan then gave us a copy of his advice. The respective sets of advice differ and both advisers hold their positions. Our legal advisers tell us we have their advice and it is what it is. If we want to get a second opinion on it - as discussed at the meeting last week - we would have to make a submission to the office requesting both sets of advice to be given to another person for consideration.
Clerk to the Committee:
We discussed this issue last week. There are two conflicting opinions, but both are simply opinions. We will not get a definitive answer until the issue is tested in the courts. One of the key concerns last week was the scope of the protection. It was decided a risk analysis, covering both the committee and Mr. Ryan, would be carried out before any decision was made on bringing Mr. Ryan before the committee. This was the decision taken last week and it still obtains.
We will hear from Revenue next week and we have the letter from the Minister on the information Mr. Ryan gleaned from the Companies Acts, which has all gone to Revenue. Therefore, Revenue should have all the information. It is for the committee to decide if it wants to or not. In looking at the risks, which is what the committee decided to do last week, we will have to see what the Protected Disclosures Act 2014 protects this individual from. This is especially so in the context of the Companies Acts because they have specific penalties in terms of giving information to anyone other than designated people. This is my understanding of the situation. I have had just a preliminary discussion with those in the Office of the Parliamentary Legal Adviser. When the Parliamentary Legal Adviser was here, we asked if we could forward the dossier to Revenue. We were told we could not. The Chairman then wrote to the Minister about this. It is information gathered under an investigation under section 19. The Act offers very limited scope on where it can be sent. All of this will have to be thrashed out with our legal people. Whether the Protected Disclosures Act 2014 applies and whether it protects the individual will have to be examined again.
The concern is that, even before carrying out the necessary risk assessment, there are not only two different views but absolutely conflicting views. Doctors differ and patients die. That is the nature of interpretation. However, the views are so radically different and the preliminary view taken will shape the nature of the risk assessment. That causes me concern. We do not want to jeopardise Mr. Ryan, in the first instance, or the committee. However, it makes more sense if clarity is obtained on that issue first. Whatever about a difference in interpretation, to have legislation that is amenable to such radically different interpretations suggests there is a problem with it.
Yesterday, at a meeting of various Chairmen of committees in this House, I raised that issue and asked that the legal section in this House would carry out an overview of the legislation, which is related to the case before us and the whistleblower. In the case of Mr. Ryan, I do not think it is clearly understood what the legislation has brought about. It has left him using legislation under which he thought he was covered. The legal adviser to the House that passed the legislation tells us he is not covered under it. It is unfair to Mr. Ryan to have a standoff between the respective legal advisers. Clarity should be obtained by this House. The submission has been made to the Committee of Public Accounts. I support the idea of asking the parliamentary legal adviser to seek a second opinion on both sets of legal advice. Having regard to the overall work of the House, there appears to be a stand off at almost every turn on legal advice being sought and given and the direction that committees are being asked to take. I understand we have to protect the committee and the House, but we also have to do our work. It appears to me that we are being tied up in a legal tangle that does not allow the work within the remit of this committee to flow as freely as it should. It will also impact on other committees. We have to seek clarification. We should get another view on this and a view from the Attorney General on the legislation itself. The committees in the House have to be allowed to do their work. We have to be allowed to progress within the set limits. However, we need clarification when things like this happen. I am deeply concerned about the direction in which committees are going, and the interpretation of law in this case.
Can I take it that we are going to ask for that second opinion? For the purposes of absolute certainty, no one here is doubting the good faith in which legal advice has been given to this committee. Our colleagues in the office of the parliamentary legal adviser should not take this the wrong way but we now have two contradictory views. For the purposes of carrying out our work, as described by the Chairman, but perhaps more important for the sake of Mr. Ryan himself, we need to know if he is covered by the legislation. We should ask for that second opinion. It should be underscored as being a matter of some urgency. We may uncover a defect in the legislation, although I find Mr. Hennessy's advice very persuasive. It is, however, a matter of interpretation.
Sometimes I feel like it is groundhog day in here. We made decisions as a committee last week. It seems that when a decision is made, we come back the following week and question that decision and find ourselves on a completely different course. Some of us raised the point that, regardless of how the legislation is written, there will always be different opinions on different laws. We received one opinion. The senior counsel acting on behalf of the whistleblower gave a completely different take on the legislation. There might be two other completely different takes on both those legal opinions if a person tried hard enough to find them.
We should wait and see what the Revenue Commissioners have to say on this issue before spending taxpayers' money on getting a second opinion. Ultimately, it will come down to the interpretation of the Act. I thought we had made a decision last week; we cannot continue coming back and redrawing decisions that have already been made. My understanding of what happened last week was that the legal advisers were to be here today to reiterate their advice on the specific issue of the whistleblower's attendance and the implications for him personally. We did it that way because the Comptroller and Auditor General made the point that if we had the whistleblower before the committee it might compound things negatively. For that reason, we wanted clarification from our legal advisers and the parliamentary legal advisers. It is like Groundhog Day here. I am experiencing a bit of déjà vu and I do not know why we are turning back on decisions we made last week.
We have to try and get the best advice on this because it is the first case. The person in question has made what appears to be a significant disclosure and his position is now in difficulty. There is no harm in asking the Attorney General if we do not want to ask the legal advisers.
That is fine, but I do not think our job here is to interpret legislation. Our primary role is to deal with entities such as the Revenue Commissioners and question them on this issue and their investigation of it. We should make decisions after the Revenue Commissioners have been at this committee and let members decide then.
It is relatively straightforward. The whistleblower has written to us and we have received legal advice from the parliamentary legal advisers about our remit. The Revenue Commissioners falls within our remit and we are requesting that its representatives come before the committee. They have already dealt with this. I am also concerned to ensure that anyone who comes in before us has protection. That matter has to be clarified. It would certainly be wise to go for advice to the Attorney General, but I think at this moment we are proceeding with the matter within the scope of our remit. There is unanimity across all legal circles that the Revenue Commissioners can come before us to deal with this issue next week. The other matters can be dealt with in parallel.
I also thought a firm decision had been taken last week as to how we would proceed and that we would do so step by step. I thought the advice we got from our own adviser was to be circulated so we would have a hard copy of it and we could study that, because we have only a short time to study it, and we have already circulated the opinion from Mr. Ryan's counsel, so we have that in hard copy format as it is. I thought we had also decided to pursue matters with the Revenue Commissioners in order to ascertain the extent of work they have done on Ansbacher and other issues, which would clarify to a much greater degree how we might proceed subsequently. There is an issue of going around in circles with legal advice. We have discussed this for a very long time and we know we can get a variety of legal opinions. We have two opinions in front of us and the opportunity of having the Revenue Commissioners before us next week. Let us get on with that for the moment.
I do not think what I raised here seeks to create a Groundhog Day scenario or to second-guess last week's decision. The risk assessment is necessary and that was decided last week. I am merely pointing out that, from the start of that process, we have had an immediate and very sensitive difficulty in respect of the protections afforded to the whistleblower. He wrote to us. This has been the turn of events and we need to find some level of clarity for ourselves as a committee on where things stand for him, within the bounds of what is reasonable. All I am suggesting is that we need to establish that. It does not disrupt the appearance before the committee of the Revenue Commissioners, which is a separate issue. If we are starting our risk assessment and one of the key elements is disputed - and the dispute is not just on the subtleties of interpretation; it is as stark and fundamental a question as protections either existing or not existing - that is a problem for us. I would like us to do what we reasonably can to try and resolve that. That is all.
We have to accept the difficulties we are creating for ourselves here. Obviously, the conflicting legal opinions create a serious difficulty. We have one solicitor and one senior counsel saying completely different things. I think the idea of getting another legal opinion is valuable. Sooner or later, we are going to have to decide which legal opinion we will take notice of. Nobody else can make that decision for us. I support what Deputy McDonald says but I do not think we should create a web of legal opinion that could be used as a method of obstructing our work. We should cut through this pretty quickly to make it easier and to facilitate Mr. Ryan in coming in rather than obstructing him. Legal advice is valuable, but it is not definitive and not something by which we should be ruled. In this case, we are looking to take the advice of the lawyers rather than to carry out our duty as a public accounts committee, which is to get him in and give him a platform.
We can clarify all of that in the meeting with the Revenue Commissioners next week. We have asked for the legal advice in writing - Deputy Dowds raised the issue earlier - and we will seek that from our own office and have it circulated. We will get the risk assessment done as well.
At our meeting of 4 December 2014, we will deal with the account of revenues collected by the Revenue Commissioners in the year ended 31 December 2013.