Seán Fleming (Laois, Fianna Fail)
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The committee is in public session. We are joined by the Comptroller and Auditor General, Mr. Seamus McCarthy, who is a permanent witness to the committee. Apologies have been received from Deputies Josepha Madigan, Marc MacSharry and Alan Kelly.

The first item on the agenda is the minutes of the meetings of 14 and 15 July 2016. Are those minutes agreed to?

Mary Lou McDonald (Dublin Central, Sinn Fein)
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Agreed.

Seán Fleming (Laois, Fianna Fail)
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Are there any matters arising specifically from the minutes? If not, we will move on to correspondence received.

Catherine Connolly (Galway West, Independent)
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Various members requested information from the Health Service Executive, HSE, so will that come up in correspondence? There were various requests for data from the HSE.

Seán Fleming (Laois, Fianna Fail)
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In the minutes of the meeting of 15 July 2016, there is a list of items that we requested in writing. We included in those minutes the follow-on information that we formally requested. The minutes of what we have requested constitute our control sheet. It is in the minutes, therefore. If the Deputy finds something we did not request but which she feels should have been sought, she should bring the matter up again. However, the minutes are the control sheet of what we are following up.

The next item is correspondence received. The first item is category A, correspondence for today's meeting - Nos. 40A and 41A - NTMA briefing and opening statements. Is that noted?

Mary Lou McDonald (Dublin Central, Sinn Fein)
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Noted.

Seán Fleming (Laois, Fianna Fail)
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We will note that. Category B is correspondence from Accounting Officers and-or Ministers and follow-ups to meetings. That is correspondence Nos. 17B, 18B, 19B, 20B and 21B. We deferred these items from last week again to allow time for further consideration. These are minutes from the Minister; that is formal Department of Public Expenditure and Reform responses to reports produced by the previous committee. These reports relate to the Bytel project; wards of court; fishery harbour centres; review of costs associated with undelivered capital projects; and the Dublin Docklands Development Authority.

I am also including correspondence from an individual, No. 14C, in this discussion as it was also deferred from last week and deals with the wards of court. We have had some correspondence on that.

Does any member wish to comment on the Department's responses to the aforementioned topics, or will we hold them over? I suggest that in view of the correspondence we have received from various correspondents about the wards of court report, we might send that on to the Minister or to the Department in the meantime to get a further response. We will then consider that in September. Is that agreed?

Mary Lou McDonald (Dublin Central, Sinn Fein)
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Yes.

Seán Fleming (Laois, Fianna Fail)
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None of those items is going off the agenda but we will hold them over until the next day. The next item of correspondence, No. 38B, was received from the HSE following last week's meeting regarding St. John of God. We will review this correspondence and look at in the overall context when we receive all the follow-ups from the last meeting. We can then write again to the HSE if we require further clarification. I think there are about 80 pages in that documentation.

Mary Lou McDonald (Dublin Central, Sinn Fein)
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I think that is the right approach because we obviously need to reflect on all of it. However, there is also a broader issue in respect of the section 38s and section 39s. So far, where difficulties, controversies and malpractice have been exposed, in some cases it is almost accidental or it is at least happening in a piecemeal fashion. Therefore, we need to consider how we can get a global view not just of the controls but also of compliance across section 38s and section 39s. I am mindful that the Chairman has a smaller cohort of section 38s and quite a large number of section 39s.

The Comptroller and Auditor General might be able to assist the committee in suggesting a way in which we can be satisfied that there is not only control but also compliance in respect of public pay policy, proper use of public funds and good governance. I do not know what that model is but I know that we cannot lurch from one episode to another just as and when they come into the public domain. We need to have a much more comprehensive and reassuring framework through which we can examine this matter in its totality. Of course, we need the HSE's full co-operation in that regard.

I do not know if the Chairman or clerk to the committee can do so but we need to come up with something that allows us to do that.

Seán Fleming (Laois, Fianna Fail)
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I support Deputy McDonald and will ask the Comptroller and Auditor General for a brief comment. Essentially, the issue boils down to this - many of the organisations that receive funding through section 38 and section 39 arrangements have other funding in their own right. All the funding seems to go into the one pot and it is then impossible to distinguish whether public funds went where they should not go or whether people will say it was private funding which went somewhere that is none of our business. That is a conundrum that we cannot live with forever. I do not want to be unnecessarily bureaucratic and have a separate set of accounts for public funds, although we might have to do so. Would Mr. McCarthy have an observation to make concerning that basic conundrum, which is that we lose accountability when funding, including private income, goes into a big pot? We are then told, in some cases, that we cannot even look at it.

Mr. Seamus McCarthy:

Yes. I think perhaps the first point is that the grants circular issued at the end of 2013 or 2014 has changed the rules in relation to how grant funding is accounted for by recipients of that funding. That was the circular that came about after the SIPTU report and this committee reported and made recommendations to the Department of Public Expenditure and Reform. It requires that all funds from public sources are identified in the financial statements of a body. Therefore, any line of funding that emanates from public bodies to grant-funded agencies should be identified.

Second, a more recent development is a system put in place with support from the Department of Public Expenditure and Reform, which is harvesting information from the financial statements of all charities and voluntary bodies. That is a huge database. It is an exercise which requires reliance on the financial statements that are published and presented. That is trying to identify for any individual charity or voluntary body where their funding is coming from, so we should be able to get a better handle on who is substantially funded from the public sector or who may be with minority support in the public sector and then charity funds or other donations. That development will probably yield a better capacity to oversee what is happening.

More specifically with the section 38s and section 39s, we have been encouraging the HSE to expand the piece of material it has in the statement on internal financial control. That, effectively, is the place that one should expect to see the kind of information this committee is talking about. It is information that would be sufficient for the committee to be satisfied that the oversight regime is not only appropriately designed but is also working.

Performance indicators in that area would show what percentage of section 39s had submitted audited financial statements within a year of the end of the year to which they related. Those kind of statistics would give the committee a handle on it if, let us say, there was 70% or 90% compliance. The committee could then look at it in terms of numbers and also the value of the spend that was issued. For instance, one might find that 10% of the section 39s get 80% of the funding and so one would obviously be more concerned about what is happening there.

From my recollection of Mr. O'Brien's presentation last week, he was talking about expanding the more demanding governance and reporting regime in place for section 38s and also applying it to section 39s. Rather than focusing on section 38s and section 39s, one might focus on the ones that are benefiting from large amounts of funding and ones that have a lesser amount of funding.

There is a lot of work to do yet in getting to the position that the Chairman described. That arrangement should be in place and should be functioning. I suppose persistence by this committee, myself and my staff in following up on that is the only way we will get to that.

Mary Lou McDonald (Dublin Central, Sinn Fein)
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That is right. We recognise there is an issue here. The Chairman made a good point that in circumstances where State moneys are provided to an organisation that also receives charitable donations and perhaps private income, the committee has found it almost impossible to disaggregate the figures and demonstrate that public moneys were used for a certain purpose alone. Financial officers conceded the point that everything went into one pot, which means nobody could credibly argue that public money was not being used for top-ups or whatever the case may be. This is extremely problematic and needs to be addressed.

My principal concern is that the committee needs to be able to credibly demonstrate to members of the public that we have a handle on and proper oversight of section 38 and 39 organisations. We should not pick up the newspaper some morning to discover there has been a HSE audit and we are dealing with another car crash scenario because these issues have a debilitating effect. While I accept that we have the elements described in place, work needs to be done to string them together and ensure the committee and others have controls and oversight over the sector and there is compliance. Instead of dealing with the section 38 and 39 organisations singly and in a piecemeal fashion, we must find a way to resolve the issues that have presented themselves.

Mr. Seamus McCarthy:

On the issue of the pooling of funding, my view would be that if there is a single fund and public resources go into it, then any application of that funding is an application of public funding, obviously on a pro rata basis. An alternative would be that where funds are given, the State sector could, if it had a particular concern that money should go to a particular resource, restrict the handling of the funding so that it goes into a particular fund and is accounted for separately and transparently in the financial statements. This is something different in terms of the inspection rights that I have. I have power under section 8 of the 1993 Act to carry out an inspection in a publicly funded body to ascertain exactly that the money has been used for the purposes intended but that is restricted to a situation where more than 50% of the income of the entity in the particular year comes from public sources.

There is a different model for national audit offices in other jurisdictions, which is that one follows the money and once the grant is given, the auditor has the right to go in and examine and see that the money was applied for the purposes intended. In terms of the grant agreement and the specification of what money is to be used for, it is possible for the HSE's internal audit - I think this is what the HSE has incorporated into the grant agreements - to follow the money and go into an organisation. If an organisation is taking the money, it has to let the HSE in to see. There are, therefore, other responses that might be put in place in the longer term.

David Cullinane (Waterford, Sinn Fein)
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We need to get a complete picture of controls in respect of section 38 and 39 organisations and even beyond that. It was interesting to note in the report that while the focus was on the organisation in question and partially on the Health Service Executive, the report also raises questions for the Companies Registration Office in terms of its processes and also for the Revenue Commissioners. Clear issues arise in respect of Revenue controls.

In all the committee's exchanges wit the director general of the HSE, he stated the controls had not failed. At the meeting, Mr. McCarthy made the point that controls of themselves are not perfect and have not been designed to be perfect. While we all accept that point, compliance is as important as controls are and controls are only effective if compliance measures work. In this case, they clearly did not work as it has been accepted that almost all of them were missed. Controls may not be the problem but compliance certainly is a problem.

This is not only an issue for the HSE. I tabled a parliamentary question to Revenue on section 38 and 39 organisations. The response I received indicated that between 2007 and 2016, Revenue conducted 7,500 desk management interventions in relation to section 38 and 39 organisations and 1,690 compliance issues were identified. These are extraordinary figures, which indicate that there is a problem. The committee needs to look at the complete picture. If we are talking about compliance but not controls, we must assess the information provided to us, regroup as a committee and identify how we can look at the complete picture, who we need to invite before us and what controls failed.

It would be simplistic to focus on the HSE when we know that different information was provided to the Companies Registration Office, for example, different dates of birth for the same person, maiden names rather than married names and all sorts of other stuff. A range of issues also arose in Revenue, including unpaid salaries. Are these matters peculiar to the organisation in question? Given the response I received from Revenue, that is obviously not the case. The committee will have to carry out an assessment of this matter, although I am not sure how we would approach it.

Mr. Seamus McCarthy:

The charity regulator is obviously part of that as well.

Seán Fleming (Laois, Fianna Fail)
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While we have an idea of the problem, we do not yet have a solution. We will hold over the issue. We are all agreed, however, that the committee cannot be expected to deal with the latest crisis every three months. That is no way to run a country. We will return to the issue when further information is received.

No. 42B is correspondence received from the Office of the Comptroller and Auditor General following up on a number of matters raised at the meeting of 7 July. It includes briefing notes on the national debt, public private partnerships, which were dealt with previously, HSE procurement and incomes on rates from fisheries. We will deal shortly with the Government debt issue in our discussion with the National Treasury Management Agency. As regards the briefing notes on public private partnerships, a report was done on this issue a couple of years ago and is available.

David Cullinane (Waterford, Sinn Fein)
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I do not know if the work programme has been agreed, although I note it is on the agenda of today's meeting. I asked previously that the committee revisit the issue of public private partnerships. The report provided to the committee by the Comptroller and Auditor General raises all sorts of issues concerning public private partnerships, including whether the information the committee receives gives a complete picture of the 25 year duration of such contracts. Only some of the recommendations made to the Department of Public Expenditure and Reform and other Departments have been implemented. The committee should revisit the issue of public private partnerships because they involve significant sums of taxpayers' money. International best practice shows that other countries do things better than we do in this area. It would be valuable if the committee were to examine examples of international best practice because information is key and without it, we cannot evaluate whether we are obtaining good value for money from public private partnerships. The issues raised in Mr. McCarthy's report merit a decision by the committee to revisit public private partnerships as a stand-alone issue at some point.

Seán Fleming (Laois, Fianna Fail)
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I will return to that matter. The National Development Finance Agency will be on the agenda of today's meeting because it is part of the National Treasury Management Agency.

The next item is a briefing note on procurement in the HSE. When we meet representatives of the HSE to discuss its annual report we should refer to the sample showing the proportion of HSE procurement that did not go through a tendering process. We cannot ignore the fact that the HSE has difficulty managing internal procurement, not to speak of section 38 and 39 organisations. We will note that.

The final note is on the Inland Fisheries Ireland rates. Having read the document a second time, I am even more shocked by its contents. I refer to Annex D, information note for Public Accounts Committee, Inland Fishery Rates. We spotted in Inland Fisheries Ireland's annual accounts a substantial write-off of the commercial rates levied by the organisation. The note states:

The IFI accounts for the years 2011-2014 (and previously for the individual Fisheries Boards) included debtors and bad debt provisions in relation to fishery rates. The most recently published accounts (for 2014) disclose trade debtors of €1.1 million and bad debt provisions of €0.88 million [This is almost 90% of the bad debt provisions].The bulk of these figures relates to fishery rates.

It appears Inland Fisheries Ireland collects only about 20% of the rates it levies every year, which is not acceptable. I am placing this information in the public domain.

We will write directly to IFI for a detailed explanation of what the problem is. They mentioned collection difficulties. Maybe they do not bother collecting. I do not know. It is incumbent on us to write to IFI directly.

Peter Burke (Longford-Westmeath, Fine Gael)
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IFI is taking major decisions on trying to exit from fish farming. A number of figures have been thrown about, which do not seem to stand up. It is important for the committee to include IFI in the work programme and potentially invite IFI representatives in. Although we understand ISI and the fish farming operation provide every county with fish, it is using an excuse of loss-making and accumulated reserves to back away from it. It does not stand up scrutiny and we should bring IFI in.

Seán Fleming (Laois, Fianna Fail)
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We will put it in the work programme. In the meantime, we will write the letter and will get a specific response. The next item is category C, correspondence from or in relation to private individuals and any other correspondence.

No. 34C is from the Department of Children and Youth Affairs in reply to previous correspondence regarding funding from the Department to Stoneybatter Youth Services. I see Deputy Mary Lou McDonald's name mentioned in it. Is she satisfied to note it?

Mary Lou McDonald (Dublin Central, Sinn Fein)
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I would like to record my thanks for a response. I want to bring it to the attention of the people who are concerned about the matter and then revert to the committee.

Seán Fleming (Laois, Fianna Fail)
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Thank you. You can bring it back then. The next item is No. 35C, a further item of correspondence from an individual, the origin of which relates to an alleged wrongdoing by Horse Racing Ireland. As I mentioned at our meeting two weeks ago, the individual has been in regular contact with the previous Committee of Public Accounts, several Departments, Deputies and gardaí over the years. Given that the correspondence is lengthy and requires some consideration on whether and how to proceed further with it, I propose we hold it off until our September meeting.

The next item is No. 36C, a letter from an individual regarding an Aosdána grant to a particular artist. This relates to art policy and is not within the remit of the committee. I propose to respond to the correspondent informing him of this and directing him to the relevant Government Department.

No. 37C is documentation received from a public official under the Protected Disclosures Act 2014. The clerk has referred the matter for legal advice as to whether the issue is covered by the protected disclosures legislation which was put in place to provide a safety net for whistleblowers who could outline concerns to Oireachtas Members and committees, if necessary. I want to ensure the spirit of legislation is fully complied with, and that anyone who sends us a protected disclosure can be assured it will be thoroughly examined. To this end, I propose we defer consideration of the issue and, at our next meeting, we set time aside to get an oral briefing, possibly from the Office of the Parliamentary Legal Adviser.

I express sincere concern on how the Oireachtas, of which we are individual Members, deals with situations in which a member of the public or an official sends in a matter which he or she believes to be a protected disclosure which should be dealt with under the Protected Disclosures Act. The Minister is adamant that there is a presumption that protected disclosures fall within the Act. I am concerned that a procedure is being implemented in the House that every disclosure that is sent in by somebody who believes it to be a protected disclosure is, in the first instance, sent to the parliamentary legal advisory section of the House before it is brought to the relevant committee. I am concerned that the parliamentary legal advisory service is looking for loopholes which will allow it not to include disclosures as protected disclosures, despite the purpose of the legislation.

I want the spirit of the legislation implemented, not for people to find legal loopholes. There is no point in the Oireachtas passing such legislation while the Oireachtas itself is trying to frustrate genuine, bona fide disclosures which citizens believe are protected disclosures. Given that the matter is being examined, we will have to return to it at our next meeting. People will understand that I do not want all these buried in the bowels of the House and prevented from making their way through the system.

The next item is No. 39C, correspondence received from the office of Professor Brian Norton, president of Dublin Institute of Technology, DIT. It is just an acknowledgement of our previous letter.

I have another letter in my folder, 43B, which is from the Secretary General of the Department of Health, Jim Breslin, explaining why he was not here at our last meeting. He was not here because: he was not invited; the accountable officer was here; and he was asked to nominate somebody to attend on his behalf and sent four people. Maybe, it is for a further meeting or maybe it will be dealt with. I fully accept, agree and note his reply.

The next item is reports, statements and accounts received since our last meeting, which are on the screen. The accounts of Tusla are there and the statements of internal financial control, SIFCs. I will ask whoever prepares this to give us the full wording of what the letters refer to, given that not everybody might know offhand what SIFC stands for. Tusla's accounts disclose that the agency identified 33 contracts awarded without a competitive tendering process, for which it incurred expenditure of €2.2 million. Here we go again. It is an issue.

Mr. Seamus McCarthy:

Recognising that a large part of Tusla's activities were previously in the HSE, some of the same problem exists in Tusla. Tusla is addressing it and I have drawn attention to it.

Seán Fleming (Laois, Fianna Fail)
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We will write to Tusla and ask for a detailed note on the matter, and we will put Tusla on our work programme.

David Cullinane (Waterford, Sinn Fein)
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I have a general question, given that the lack of competition in procurement keeps coming up. I assume the Departments are working from circulars or legislation and there is a lack of compliance with the rules that have been laid down. Are there any sanctions or penalties for it?

Mr. Seamus McCarthy:

There is a very complex set of rules, laws and EU directives within which public procurement must be carried out. It is a very technical area with many potential pitfalls if an organisation does not do things correctly. One of the reasons for which we have been putting so much emphasis on the importance of competitive processes is that there are remedies available to people who are legitimately in business and who would have a legitimate expectation that they would be able to compete. They may secure compensation if they have not been allowed to compete. These are the kinds of risks organisations are running if they do not open their procurement to the market. This is why we have kept pushing at it.

Seán Fleming (Laois, Fianna Fail)
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We will put Tusla on the work programme. The next accounts are the Higher Education Authority, clear audit opinion; Dublin Institute of Advanced Studies, clear audit opinion; Irish Fiscal Advisory Council, clear audit opinion; and Microfinance Ireland, clear audit opinion. Microfinance Ireland is a small organisation issuing micro loans. Next, the Housing and Sustainable Communities Agency, clear audit opinion. It will be in our work programme as part of dealing with the Department of the Environment, Community and Local Government.

Mr. Seamus McCarthy:

All the remaining items are within the National Treasury Management Agency, NTMA, stable.

Seán Fleming (Laois, Fianna Fail)
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The National debt, NTMA, Post Office savings funds, State Claims Agency, Dormant Accounts Fund, Ireland Strategic Investment Fund and the National Pensions Reserve Fund are all in the book, which is the subject of today's meeting. They all have a clear audit opinion and we will be able to discuss them at length with our witnesses when they arrive today.

Regarding the work programme, we need to set up some meetings to be ready for when we come back and the secretariat must contact the organisations in advance. I propose that in our first meeting back, which is in the week of 22 September - the Dáil resumes the following week - we deal with the special report already produced by the Comptroller and Auditor General on the management and service payment in public sector bodies.

I suggest we deal with that matter on the first day. On 29 September and at the subsequent meeting we will have representatives of the National Asset Management Agency, NAMA, before the committee to deal with what we hope will be the report on Project Eagle. We will start immediately with those items. I am conscious that the report of the Comptroller and Auditor General will be coming out at the time and we will wish to deal with some of these items. I am also asking members to include items in the work programme. The Comptroller and Auditor General has indicated that he will send a report on Project Eagle to the Minister shortly and we should deal with it immediately on our return and before the end of September. It will not be a question of having one or two meetings as we have an amount of work to do. NAMA is the biggest organisation in the State and we must give it considerable time.

Mary Lou McDonald (Dublin Central, Sinn Fein)
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That is welcome because obviously it has been a source of considerable controversy. If we are to deal with the Comptroller and Auditor General's report on the Northern loan book, when will we have sight of the report? I understand it has been completed and has been sent for comment or feedback.

Mr. Seamus McCarthy:

Yes. Just this week we received the final comments on it from NAMA. Obviously, we must process them and complete our final checking and so forth. I expect to complete the report next week.

Mary Lou McDonald (Dublin Central, Sinn Fein)
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When will Mr. McCarthy publish the report or when will it come into the public domain? In other words, when will we get our hands on it?

Seán Fleming (Laois, Fianna Fail)
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Explain the process.

Mr. Seamus McCarthy:

On the process of publication, I do not formally publish the report. In this case I will send it to the Minister for Finance because he is the Minister with responsibility for NAMA. Under the legislation, he has three months within which to present the report to Dáil Éireann. It is placed in the Oireachtas Library on his the direction.

Mary Lou McDonald (Dublin Central, Sinn Fein)
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In this the timing is everything. I agree with the Chairman that we must deal with this matter, but we can only do so having had prior sight of the report. I hope the Minister, when he receives the report, will publish it without delay. One cannot have a farcical situation where the investigating committee is left without a report. We cannot have representatives of NAMA before the committee on that basis. I do not know how to expedite the process. Would it be appropriate for the committee to write to the Minister to say we are aware that the work has been completed and that he is due to receive the report shortly and to ask him to publish it without delay and furnish members of the committee with a copy of it?

Seán Fleming (Laois, Fianna Fail)
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We will write formally to the Minister asking him to lay the report in the Oireachtas Library when he receives it. That is the official way to proceed. The Houses of the Oireachtas do not have to be sitting for him to do so. We can ask that it be dealt with as early as possible. There have been occasions in the case of other reports when the Minister who has 90 days in which to do so has waited until the 90th day. I have seen this happen.

Mary Lou McDonald (Dublin Central, Sinn Fein)
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Yes, I do not doubt it.

Seán Fleming (Laois, Fianna Fail)
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That could mean it would not be made available until the end of October, which would be no good. We will ask the Minister to publish the report straightaway, explain to him that we have a meeting scheduled for 29 September and that we must have it in sufficient time in advance to allow us to conduct a productive meeting on that date and ask him to publish it much earlier, if possible. Is it agreed that we formally write to the Minister on that basis? Agreed.

On the work programme, we have said we will deal with third level institutions as part of it. There will be the normal work programme as a result of the Comptroller and Auditor General's report at the end of September. We have also included Tusla and Inland Fisheries Ireland. Over the course of the summer if members wish to include specific items, they should forward them to the committee secretariat. We know what we will be doing in the first couple of meetings; on the first day we will be dealing with the special report on public sector severance payments and then Project Eagle for a couple of meetings. We might require to have more than our weekly Thursday meeting to deal with it as otherwise everything else will slide. We will have to make arrangements for that he happen when we return.

Mary Lou McDonald (Dublin Central, Sinn Fein)
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May we take it that our prior discussion on section 38 and section 39 organisations and the mechanism for oversight are included in the mix also?

Seán Fleming (Laois, Fianna Fail)
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Absolutely. Representatives of the HSE will be back.