Oireachtas Joint and Select Committees
Thursday, 13 December 2018
Public Accounts Committee
Business of Committee
We are joined by the Comptroller and Auditor General, Mr. Seamus McCarthy, who is a permanent witness to the committee. He is joined by Mr. Ciaran Wright, senior auditor.
Apologies have been received from Deputies Shane Cassells and Pat Deering.
Last week we did not approve the minutes of the meeting of 8 November as there was one slight change to be made to the wording. Are the minutes of that meeting agreed to? Agreed.
Are the minutes of 29 November and 6 December agreed? Agreed. The next item is matters arising out of the minutes. There is not anything specific because the correspondence will cover most items.
The first item of correspondence in category A, briefing documents and opening statements, is Nos. 1788 A and 1791 A, from Mr. Seán Ó Foghlú, Secretary General, Department of Education and Skills, dated 6 December 2018 and 11 December, respectively, providing a briefing note and opening statement for today's meeting on the provision of school transport. We will note and publish these. Is that agreed? Agreed. The next item, No. 1790 A, is an opening statement from Bus Éireann. We will note and publish it. Is that agreed? Agreed.
The next item is correspondence from Accounting Officers or Ministers or both, as well as follow-up to Committee of Public Accounts meetings and other items for publication. We held over three items from last week's meeting for further review. The first item was from Ms Mary Lawlor, public affairs manager, NAMA, dated 29 November 2018, providing further information requested by the committee on Project Nantes with a breakdown of the €24 billion in asset sales categorised by the jurisdiction of purchaser. We requested a note from the parliamentary legal adviser on section 172. We will deal with that, not today but as soon as possible. We will consider that letter from NAMA as part of the briefing we will get from the parliamentary legal adviser. We note and publish this.
The next item is No. 1767 B from the clerk to the committee of the Committee on Procedure, dated 30 November 2018, forwarding a complaint on matters raised by the committee in advance of the recent presidential election. The complainant believes the committee raised the matter of presidential expenses in order that it would become an issue in the election campaign. We agreed to note and publish a redacted form of the correspondence last week so as not to identify the person involved.
However, I propose that the committee draft a letter to the Committee on Procedure and a similar one to the individual who raised the matter stating that the committee's consideration of the Comptroller and Auditor General's appropriation accounts 2016, Vote 1 - President's Establishment, was within the remit of the committee and that the committee's work highlighted important issues regarding transparency in the funding of the Office of the President. Is that agreed?
What I am suggesting to the committee is that the Vote for the President's Establishment is done as part of the group of Votes for the Department of the Taoiseach at the Estimates committee. We will take it as part of the day we have the Department of the Taoiseach here dealing with its Votes. There is a number of Votes associated with the Department of the Taoiseach, such as the Attorney General's office, the Chief State Solicitor's office and the Central Statistics Office. There is quite a bit in the group of Votes under the Department of the Taoiseach and this is an associated Vote that is always taken as part of that group in the Estimates debate. We will group it as part of the meeting we will have with the Department of the Taoiseach because that Department discusses it at Estimates time. I propose in the work programme to take that group early in the new year.
For the benefit of those watching, we dealt with Vote 1, which is voted expenditure by the Oireachtas, and the Accounting Officer for the Department of the Taoiseach is the Accounting Officer. That Accounting Officer is who we had previously before the committee on this topic and he is who we will have present when we deal with the Votes for the Department of the Taoiseach, and we will include that as a specific item.
It is important, however, to clarify what the Deputy has said. That allowance is paid directly from the Central Fund and does not go through voted expenditure at all, and that was one of the issues. The Central Fund is managed by the Department of Finance. We will specifically have to deal with that amount with the Secretary General of the Department of Finance when the Secretary General is before the committee. What is known as the Central Fund, the finance accounts of the State, does not go through the Oireachtas for a vote. The main other such items that are not voted through the Oireachtas, including that allowance that we spoke about, include interest on the national debt, contributions to the EU, payments for judges.
We stated, when we finished our discussion and we were heading into the campaign, that we would not discuss the President's Establishment any further until we come to do it formally in the new year. Everything the Deputy is saying will be dealt with.
We will formally do it. Rather than us pre-empting our discussion in the spring, I am merely saying it must involve the two Secretaries General to deal with the full aspect of expenditure in Áras an Uachtaráin, those of the Department of the Taoiseach and the Department of Finance.
That goes as far back as the 1990s. When the Accounting Officers appear before us, it would be useful for them to give some understanding of why it was decided to do it that way. Just as that is an anomaly, there may well be other anomalies. It would be interesting to see how such anomalies originate.
We will certainly come to that. We will get a briefing on the background. I guess it was done in order that there would not be a controversial debate on the floor of the Dáil about such expenditure in an Estimates process. What was valid in 1938 may not be valid in 2018. That is a matter we will discuss when we come to it.
We will look at that Finance account specifically. It is always a concern to me that large items are paid through this account and never discussed on the floor of the Dáil. People will have heard me say this previously. We will pay special attention to that account this year.
The next item is No. 1768 B from Mr Ciarán Breen, director, the State Claims Agency, dated 30 November 2018, providing further information requested by the committee regarding medical negligence, open disclosure and CervicalCheck and Thalidomide-related litigation. We held this over from the last day. There is useful information in this correspondence that will feed into our periodic report. We asked for a breakdown of various aspects of the claims. The agency does not want to identify hospitals and talks about groups of hospitals. We do not want to go there at this point in time - we can consider the matter next year. However, there are two items. It gives a breakdown on the number of claims for maternity services and the total number of claims. One issue I had asked was, how much, out of what it pays every year, goes to the wards of court. It has given the figures: in 2015, 2016, 2017 and up to 31 October this year, it was €101 million, €81 million, €126 million and €87 million, respectively.
The Joint Committee on Justice and Equality has done a report on wards of court which the Dáil will debate in the new year. However, this is very interesting information that we have never seen before. It seems to be the practice that in serious cases it is agreed in the court that the person be made a ward of court. It looks as though a very high percentage of the payments made by the State Claims Agency are actually paid to the wards of court fund. This prompts another question as the wards of court fund is outside the reach of public scrutiny whereas when it is in the State Claims Agency it is within public scrutiny. I suggest we ask for one further piece of information in relation to that table 3, namely the total other payments for compensation so we can see the percentage of total payments to wards of court. I asked a question merely on guesswork but I am stunned at the amount of money that is going directly to wards of court. It illustrates the scale of the issue.
I have said previously that a number of things were conflated when the State Claims Agency was before the committee. The whole issue of open disclosure is an area that we will have to examine thoroughly. I understand the State Claims Agency has a function in supervising or assisting or advising some parts of the public service in mitigating against claims arising in the future.
It would be useful if this played a part in our examination. Entities such as the Air Corps would fall into our examination when the State Claims Agency is again before the committee. It would have done some supervision and there are issues which certainly require scrutiny. There is also the matter of open disclosure in non-clinical claims. We need to look at a range of things including CervicalCheck, the wards of court and the difference in the types of hospitals where claims arise. The other component is also important. If we are to prevent future claims we must look at how they do their work on risk assessment. If that fails, we will end up with claims that we should not have.
The Deputy is absolutely correct. We have had some engagement with the State Claims Agency but we can see there is work to be done on the costs of the claims, prevention and minimising, what has been done and the lessons learned. That has not been done before in the Oireachtas. I am not saying that we will do a special report, although we might, but we will examine it in 2019.
I wish to raise something tangential to this. Where something happens in a hospital, and inevitably things do, there is an internal and external review. Claims often arise from these incidents but there is no record of those reviews. I raised this at the last meeting. For instance, in response to a question about external reviews - I did not ask about internal reviews - the Saolta Group in Galway has stated it has no record of external reviews carried out in the last ten years or the cost. That is the official answer.
It ties in if we are looking at the reviews and we need to know the costs, what arose and what has been learned from them. I am struggling to know where to go with the answer. It was a simple question and the response was clear that it had no record. The question related to the number of external reviews and the cost.
Mr. Seamus McCarthy:
One core element of a governance structure is a risk management capacity in an organisation. What a risk management capacity should do is identify those types of issues, the learning points and ensure that there is follow up and that any continuing exposure is dealt with. There should be some kind of oversight in an organisation of where things might have gone wrong, have lessons been learned and if changes have been implemented. That might be the area on which to focus when addressing Saolta, and to ask if Saolta does not have the information, what is its risk management function doing if it is not doing that.
The State Claims Agency said it would give a report back to the hospital but hospital managers come and go and there is no central learning process. Sometimes the State Claims Agency reports to the hospital. The reports the Deputy mentioned are commissioned centrally sometimes and they do not go to the hospital. There is a gap.
I do not know but there is a simple question of how many external reviews have been undertaken in the last ten years, what did they cost and by whom were they carried out. That information should be readily available and passed on in terms of openness and accountability, and the information should be fed into the State Claims Agency, which ought to be aware of this. Otherwise, how can it do its job?
On a related matter, the committee wrote to Portlaoise Hospital for a breakdown of the review there. We told them it cost €399,000 and they wrote back saying it was €399,000. We formally asked for that breakdown some weeks ago and will ensure that we get it in due course.
The next item of correspondence, No. 1754, is one held over from last week when we discussed it briefly. It is from the Secretary General of the Department of Housing and Local Government. This was the instance where, as I mentioned, the credit policy of the Rebuilding Ireland loan scheme was heavily redacted. It was so voluminous that we had said that we would hold it over for consideration but I wish formally to note and publish the document rather than leave it hanging until the new year. We had a preliminary discussion last week but this is just to sign-off on it formally.
We might discuss that in a few minutes when we deal with our work programme. We have not made any progress.
Correspondence No. 1775 B is from Dr. Des Fitzgerald, President, University of Limerick, dated 4 December 2018 providing additional information requested by the committee in relation to the steps taken by the University of Limerick to engage with three specific members or former members of staff. There are a number of employees or former employees of UL who have been in correspondence with the committee on this topic and therefore I think it is appropriate to ask the president to confirm that those to whom the correspondence refers have been sent a copy of this correspondence and, if not, to do so. We will note the correspondence and we will not publish the specific item yet. We will deal with the University of Limerick whistleblowers early in the new year and will return to it as part of our work programme.
The whistleblower issue and the Comptroller and Auditor General's report are separate.
We will come to the work programme in a few minutes. We will hold that over until then but we do want to write back to make sure the people involved have been notified. The next item is No. 1775 B from Dr. Des Fitzgerald, President of the University of Limerick, UL, dated 4 December 2018, providing additional information requested by the committee in relation to the steps taken by the University of Limerick to engage with three specific members or former members of staff. It is a three page letter with one thing I want to confirm. In the second last paragraph of the letter on page 7, it is stated that persons B and C remain employees of UL. It continues by stating that UL continues to engage with persons B and C so as to ensure they can return to the workplace as soon as possible. I raised this the last day and I think we might have written back. If we have not, I want to know where in the workplace is being referred to. Is it a situation where the people involved are being offered some other job in some other section and not the job they were in before this incident? We need clarification. On reading that letter first, it might be thought that those people are back. If we delve deeper, they may not be back in their own job. I want that clarified.
The next item of correspondence is No. 1776 B from Mr. Ray Mitchell, assistant national director, HSE, dated 4 December 2018, providing further information requested by the committee regarding the transfer of the property on Grace Park Road from religious congregations to the HSE under the residential institutions redress schemes. We will note and publish this. We will keep a hold of it. It is still between the solicitors. We will not sign off on that religious congregation handing over the sites yet. This is an update on the letters that are toing and froing but without conclusion. We will continue to monitor that.
Correspondence No. 1778 B is from Mr. Seán Ó Foghlú, Secretary General, Department of Education and Skills, dated 3 December 2018, providing information requested by the committee. I refer to the instruction given to education and training boards, ETBs, in respect of the publication of minutes of ETB meetings, including the date of commencement and a schedule for each of the 16 ETBs for the publication of their minutes. I am pleased today that all ETBs are now publishing minutes of their meetings online. We will note and publish this. Helping to get that carried out is something we have achieved.
They are now available online. The links have been included with this correspondence. If somebody calls up the correspondence in electronic format, he or she will get direct links to each of the ETBs. That is useful and we will publish it so that anybody who wants access to those records can use the website of this committee to follow those links. The item of correspondence is No. 1779 B from Mr. Ray Mitchell, assistant national director, HSE, dated 5 December 2018, providing a detailed note as requested by the committee on the release of slides related to CervicalCheck. Can we note and publish this?
One of the first things learned in politics is that we read something the first time and then we decode it and read it again. It is welcome that have got this information but I fast forwarded to further slide requests on page 6. I read that. There is going to be a case next week, on 20 December I think it is, with an application to the High Court to have the records of the slides of some of these women released. Why is that happening?
If I can finish, on reading this it looks like that there is a fairly short timeframe for providing these slides. I have been talking to some of the people involved. Some of the applications, included in these 18, go back to April. A fresh application, however, came in. It is not acknowledged anywhere that the original application for these slides goes back to last April and May, in some situations. It gives the impression that it is a shorter duration by virtue of the fact that there was a second application.
The key issue here is the format in which slides or photographs are produced. I refer to them being usable in the event of a court case. There was to have been a meeting with the Minister for Health, Deputy Harris. That was cancelled at very short notice, something like 12 hours notice, to the great disappointment of the 221 Plus group. This is one of the issues that would have featured at that meeting. Much of information here is accurate but there is one item of information that certainly takes a liberty - and a significant liberty.
The failure to begin with was that people were not given information about their own health. That has now been repeated because some people, albeit a small number, have to go to court to determine whether these records can be released. I do not think we were given any kind of indication that there was a dispute when the HSE was before this committee. For me, that is misleading this committee.
I understand everything that was said. I have also been speaking to some of the ladies directly involved. For public information, I want to touch on a few points in the letter. It is an extensive letter with very detailed information. We welcome the information provided. It is the first time anybody will have seen this level of information on this matter. I do want to make some points for people watching. The letter states that in respect of the cytology slides it is a condition of the laboratory that it holds the document for up to ten years once testing has been completed.
The letter from the HSE continues on page 2 with the kernel of the issue Deputy Catherine Murphy mentioned. The HSE has put what it calls a protocol in place because it states that these slides are a critical piece of primary physical evidence that will be relied on by patients to advance their claims and by the laboratories and the HSE in defending any such claims. An exact protocol was put in place by the HSE as to how the slides are to be released. I will come back to that because it is relevant. The HSE states that it wants to maintain the chain of custody and to ensure that the slides are issued through laboratory to laboratory transfers. Even though the HSE, and the national screening service, is the legal custodian of these slides, they are normally held in laboratories.
It goes on to state that a digital image is taken to record the condition of the slide prior to its dispatch so as to ensure that if a slide is lost or damaged in transit, a secondary record of the contents of that slide will be available. Typically, the taking of such images requires the input of a specialist cytologist or screener. That is some of the reason for the delay. I am just putting that on the record. I am not agreeing or disagreeing. It is being stated by the HSE that some of the issues patients have might result from a single patient slide being in one or two, or more, laboratories and more than one laboratory, therefore, might have to be contacted for some individual patients.
The letter goes on to state that early on, before the HSE established its protocol, some people, because it is their medical information, were contacting the laboratories directly. The HSE was losing a chain of custody, as it calls it, of evidence that might be very relevant. It put this protocol in place and that has ensured that the HSE now has a centralised approach. I ask the Deputies to pick up on what I am saying when I am finished. The HSE has stated that the updated position, as of Friday, 28 November, was that slides have been released under the protocol to 30 patients represented by 16 different firms of solicitors. The number of patients who received slides following direct contact with the laboratories, before the protocol was put in place, was 18.
On the next page, the HSE gives the release time for 49 slides. That is not 49 people because some people might have slides in more than one laboratory. It is clear that 25% of them were well over the eight week period. I cannot find this in the letter but the HSE has stated that, in its protocol, when arrangements are being put in place to meet a request for slides to be transferred from laboratory to laboratory, it must also be to an identified person with relevant experience taking overall responsibility for maintaining the physical environment in which the slides are stored and examined. I think we have to agree with that.
I will move on. The court case concerns the fact that some people want their slides released but not in accordance with the HSE protocol. I think the essence of the case is not that people cannot get their slides. The HSE states that slides should be issued according to this protocol. People are saying they want their slides but not through the protocol. Deputy Catherine Murphy may correct me if I am wrong. I think this is why the HSE, from a centralised base, wants to maintain the chain of custody. It states that if slides are being transferred from laboratory to laboratory and from named physician to named physician, it wants this done in accordance with the protocol and it probably wants to maintain the integrity of that protocol rather than this happening outside of it. I am almost finished now, and Deputy Murphy may pick me up on anything she wants to pick me up on, but this is such an important issue that it is important to put this information out there. Then it states, "[A] firm has indicated that it wishes to have the High Court rule on the arrangements that should be applied to the release of slides where no legal proceedings are in being." They might not be in being now but they might be at a later date. The correspondence continues, "For completeness, it should be noted that...on 8 November last, the HSE had not received the information necessary to release slides relating to the 51 patients in question (i.e. the 18 patients who have issued proceedings and the 33 other patients who have not)." What had happened in these cases is that the HSE had identified the laboratory in Northern Ireland; however, it had not given the name of the responsible person in the laboratory. The HSE stated that it considers it likely that many of the requests that were referred to at our recent meeting are possibly part of that 51 in respect of which slides have not been released because the HSE has not been given the name of the person who was going to take custody for it in the laboratory in Northern Ireland. The correspondence gives the turnaround times relating to the slides in the table on the following page. If it looks as if I am defending the HSE, all I have been doing is summarising its position in its letter. The essence of the matter seems to be that there are a number of cases held up in which the person in the laboratory has not been identified and the HSE states it will not give a slide to a laboratory unless it knows who the responsible person is. Then there are other people who do not want to go through the HSE protocol. This seems to be the essence of the court case. I call Deputy Murphy. That is just my reading of the HSE's letter.
I agree with a lot of the Chairman's summary. Certainly, no one, not least the women involved, would want the original slides to be exposed to any kind of damage. That would not be in anyone's interest. Quite rightly, there is a protocol. My understanding is that the protocol was deemed not sufficient by one solicitor who had experience of contesting a case in the courts and that this same solicitor, who has a number of clients, went back and suggested some amendments to the protocol within a week - this was in September - and has not been engaged with since. It is important to say that. Essentially, the HSE is stating, "It is our protocol. It cannot be amended." My understanding is that the difficulty is that the resolution of the photograph of the slide that the HSE proposes would be not sufficient to show up the abnormalities. What use is that? This is the kernel of the problem. Going back to our relying on information when a public body comes before the committee, we were told there was a 22-day turnaround. It was as if we were inventing a problem. This problem has been acknowledged in this letter and it will be further acknowledged next week. I hope the matter does not have to go to court. There would be absolutely zero point in going to court if there were a satisfactory outcome to the matter. It strikes me that there was zero discussion of there being a problem here when we had representatives of the HSE before the committee. I really take exception to that. We must be able to believe what people tell us when they come before us. The word "candour" has been used here on numerous occasions. We would not have had to keep going back looking for information if it had all been outlined in the first instance. There continues to be a problem, however, and I think the public would be surprised at this, given that the failure, or part of the failure, in the first place was not providing the information that was needed. It must be given in a format that is usable as well.
I think the HSE acknowledges on a couple of occasions the unsatisfactory length of time it is taking. It does put its hands up and does not disguise this. In its own way it is important we release this letter today because many people are looking for it and there is significant information in it. Our discussion teasing out the issues here is probably helpful to the process. I ask the HSE please to listen to what is being said here this morning because we were told these matters should not have to go to court. If there are issues with the details of a protocol, I ask the HSE to try to sort them out without going to the High Court if at all possible. I think we would be unanimous on this if it could be done. I thank Deputy Murphy for raising the matter. Without her pursuing it the last day, we would not have this correspondence today. It is very useful for many people involved, especially the women directly affected.
The next item of correspondence is 1780 B from the HSE, providing information on the Deloitte report into governance arrangements in respect of section 38 and section 39 organisations. It is expected that we will be given a copy of this report in January.
The next item is 1782 B from Mr. Pat Smyth, interim CEO of Tusla, dated 4 December 2018, providing information requested by the committee on procedures to secure service level agreements and the memorandum of understanding on information-sharing with An Garda Síochána. We will note and publish this. The important aspects of this letter are the following. Regarding the memorandum of understanding on the sharing of information with An Garda Síochána, Tusla makes quite an issue of the data-sharing agreement and the legal services involved from both organisations. I think they are getting advice on this. Tusla states:
Once approved and signed off, Tusla and [An Garda Síochána] will agree an implementation strategy. The time frame for implementation has been set as Q1 2019.
That is useful. The other item Tusla gives is a full list of all the organisations with which it has commissioned a service level agreement. I think every one of these organisations bar one has signed a service level agreement, and that one exception is in the process of being - to use Tusla's words - "decommissioned" from dealing with Tusla. This is again progress on following up on these service level agreements. We started with the HSE, we found a weakness in Tusla, we referred to it in our periodic reports and Tusla seems to be 100% on top of the job. We will note and publish the correspondence.
The next item of correspondence is 1784 B from Mr. Liam Sloyan, chief executive of the National Treatment Purchase Fund, dated 5 December 2018, providing information requested by the committee on the review of the pricing mechanism for long-term residential care in private and voluntary nursing homes. It includes a note on the progress of the Deloitte prospectus review and a note on the nursing homes steering committee. We will note and publish this. People may be interested in it. It is a follow-on from the information we requested. There are copies of minutes of meetings and of records of information. That is useful.
The next item is 1785 B from Mr. Niall Cody, Chairman of the Revenue Commissioners, providing an information note on testing the constitutionality of excise law in a tax appeal case. This was mentioned at our meeting. He says it is not a matter for the Tax Appeals Commission to make any determination but, rather, it is a matter for the courts to decide constitutionality. He provides information on high-income individuals' restriction and a summary of section 485F, carry forward of excess relief for the years 2007 to 2016. This is as a result of a question I asked and it is good to get this in the public domain. The correspondence concerns one of the reasons some high-wealth individuals pay quite reduced amounts in tax. We understood that if they had losses, and if they had claimed this allowance and carried forward losses in a given year rather than using them all, they could carry them forward again.
Some people will be interested in that. We asked for details of the fines imposed by courts in respect of tobacco. We found them farcical. For the millions of euro involved the fines issued were farcical, and the situation has become more farcical now. Three cases went to court. One person was fined €12,000 and two individuals each received a fine of €5,000. One individual received a fine of €5,000. Any defendant who received a sentence had it fully suspended. There is zero deterrent to smuggling in Ireland as far as I can see. We talk about it every year. The revenue or some other body should be given the authority to impose very serious fines. All that happens is that smugglers lose one particular shipment. They carry on the next week with the next lorry-load. That is something we will have to come down on firmly in our periodic report. It is no wonder it is happening on this scale because there is zero enforcement and zero penalties relative to the scale of activity.
The next item is No. 1,786, from Ray Mitchell of the HSE-----
We will write to Revenue and ask what body takes the prosecution; is it handed over to the Garda or does Revenue itself prosecute; and what were the legal costs of each of the cases in 2016, 2017 and 2018 to date.
The next item is from Mr. Ray Mitchell at the HSE. We are keeping that man busy this week. The item is a note on the record retention policy in place, in particular procurement documents, and changes that will be made to this. There is also a note providing a list of supports available to those affected by the H1N1 vaccine, that is, the flu vaccine. This arose from matters concerning the procurement of goods and services and retention of records. We found that some of the documentation concerning CervicalCheck was not kept on file. That is where that query arose.
The next item of correspondence is No. 1,787 from Mr. Nick Ashmore, chief executive officer of the Strategic Banking Corporation of Ireland, SBCI, dated 5 December 2018. It provides a response requested by the committee regarding the value for money query. I propose we forward a copy of the correspondence to the individual who raised the matter. I find this response completely unsatisfactory. From recollection I think we asked some questions. A major fund is available to the SBCI. It does not lend directly. It provides funding to on-lenders, meaning banks or other institutions. I want to know the breakdown of how much is provided through banks and how much is provided through non-bank on-lenders. I find it extraordinary that on writing to the Strategic Banking Corporation of Ireland we got back a three-page letter on money matters without a euro symbol in it. There is a lot of lovely talk about policies and principles. It could have been taken from the opening statement describing what the SBCI does in its annual report. It gives us none of the information we are really looking for; how much the SBCI has loaned, how much the banks have loaned on, how much the non-banks have loaned on-----
I cannot understand how a financial organisation, the Strategic Banking Corporation of Ireland, can write to the Committee of Public Accounts on a financial query and supply three pages without mentioning a single euro. Talk about a generalised response. The SBCI was hoping we would accept it. We do not accept it. We acknowledge it, but we want a proper reply the next time.
The next item is No. 1,789 from Mark Griffin, Secretary General of the Department of Communications, Climate Action and Environment, dated 6 December, providing information requested at our meeting last week. These queries concerned contracts awarded without a competitive process. There are very useful details here. Mr. Griffin says that some of the issues relate to very specialised, unique expertise only available to a very limited number of contractors, or in some areas only available to one. There is good information there. We will note and publish that.
I do not accept the responses that have come back, to be honest. They raise more questions about the procurement process. We are talking about contracts which are awarded without a competitive process. There may be times when that is the only possible outcome but it seems to happen an awful lot. To give a couple of examples, the Department states in the document that the contract was awarded for Corrib north and Corrib south-----
The information on Corrib north and Corrib south states that the contractors have the requisite expertise and knowledge to carry out the urgent assessments required, and the contractor has specialist knowledge and an in-depth understanding of this complex project. That does not necessarily mean that there were no other possibilities. It is not an excuse for not having a tendering process.
The same applies to the contract to support the development of the national mitigation plan, NMP. The Department says the process was shelved because the supplier is considered unique because of the research it offered. Who considered the contractor unique? Again, I do not accept that as a reason not to have a tendering process. The same occurred with a NMP climate modelling contract worth more than €600,000. Again, there were no competitive bids. The Department's reason is that the contractor has a specialist team.
There is a wider implication here. Even if it was the case that these were unique specialist services, why is in-house expertise not being built up at the Department? It was the same with the national broadband plan. We have ended up with only one bidder because it seems that the only contractor left is the one that can do the job. We all know why that happened; because of privatisation. However I do not accept that for these contracts. An awful lot of contracts are being awarded without any competitive tension at all. We are given the excuse that the Department believes that the supplier is the only organisation or private company that can do the job. That does not cut it. I do not know if the Comptroller and Auditor General has examined the correspondence.
Mr. Seamus McCarthy:
The point the Deputy is raising is exactly the relevant one. We challenge these outcomes when we become aware of them. We ask the Department to demonstrate to us that this is the only supplier who can do this. It is a little clearer when a public body is locked into an ICT system and there is only one supplier of licences or requisites for it. We then check that the procurement testing for that has been carried out, even on a ten-year cycle, and that there is proper full-life recognition of the costs associated with the contract. A public body cannot just pick a supplier and decide that the State is tied to that supplier.
That is my point. The Department is saying that it considers the supplier for the national mitigation plan to be unique. Who decides that this contractor is unique? Why is it not tested? Mr. McCarthy's point is-----
The Deputy is right. It will be noted and published. The Department might say a certain person has the requisite experience etc. to lay underground electricity cables. I am sure there are lots of people in the EU-----
----- who would come forward for a contract of €100,00 if it was put out to tender. Following up on what Deputy Cullinane was saying, I am struck by No. 4. The upgrade of the Department's financial management system was worth €74,000.
It says the vendor is the sole supplier within Ireland of the software used by the Department of Finance. How did the Department pick a financial management system with only one supplier of that service in Ireland? It is nonsense to think there is not a myriad of companies that could provide a financial management system to the Department. We will write to it asking it to give us an information note regarding each of the items mentioned by the Deputy where there was either a sole supplier or these people had unique expertise. We want a note on each of them as to how the Department arrived at that conclusion.
I raised this previously. I know we have a very busy work schedule and a lot of work to do but the broader issue concerns procurement. This is another example of where there are problems. This time, it is citing a lack of expertise in the marketplace and saying that in its judgment, only specialised companies can do this work. In other areas, we have seen examples involving leaving it too late before rolling over contracts or putting them out for tender. We know there are ongoing problems in the HSE and the Department of Education and Skills. We have done it but it is bit sketchy. We are coming at it in bits and pieces here and there so I ask that we join it all up and at some point, produce a report on procurement because the problem is that there are no sanctions.
It involves a slap on the wrist and a note at the end of the Comptroller and Auditor General's report saying that there may be issues regarding non-adherence to procurement rules. We then give the Accounting Officer a slap on the wrist, there is no punishment or sanction and it continues. I know there have been some improvements in the HSE because of our work. Notwithstanding that, it still comes up over and over again for many different reasons. I know we will get to our work programme. Can we look at the issue?
I support that call. I have raised the matter with regard to computer expertise. What is happening is that there is less and less competition. That is the problem. There is less and less competition under the guise of more competition and we are struggling piecemeal with it so I would certainly welcome an opportunity to come back and deal with it in a more comprehensive manner. We are just beginning to identify the problems. It is a bit like spin-off companies where we barely touch on the matter.
We will write to the Department asking it to give us a detailed explanation in each case involving a sole contractor and tell us how it arrived at that conclusion. For example, €100,000 was paid for the provision of legal advice regarding the Corrib gas field project. The reasons given for not having a competitive process include the contractor having specialist knowledge and an in-depth understanding of this complex project. We would certainly hope that whoever was getting the contract had specialist knowledge and an understanding of the project or it should not have got th.e contract but to suggest that there was nobody else in the country who could have done it does not stand up from our perspective. We will come back to that
We now turn to correspondence from and related to private individuals and any other correspondence. No. 1774 C from Senator Gerard Craughwell, dated 3 December 2018, is correspondence requesting the committee to make inquiries regarding the expenditure by the Department of Defence defending High Court actions on its failure to implement the working time directive for the Defence Forces. We will request a note from the Department regarding the matters raised.
This is an important issue that was raised with me. The Defence Forces are not subject to the Organisation of Working Time Act 1997. Similar Acts are in place in other countries to which the relevant defence forces are subject so we are unique in this respect. Because there is no possibility for class action in this State, individual cases are being taken by the trade union. It seems the WRC is siding with the workers in each and every case. Rather than, again, dragging more and more workers through the WRC with a cost to the State, it would make more sense to deal with the substantive issue. It seems that from the WRC perspective, the EU has a competency in this area that supersedes national law. This is one of the reasons the WRC is making the judgments it is making. Senator Craughwell mentions the European directive in his correspondence. We need to go back to the Department with that substantial point, which is that if it is losing all these individual cases and is faced with more, why does it not deal with the substantial problem here?
We will write to the Department and request a reply.
No. 1783 C is correspondence from an individual regarding the response from the University of Limerick regarding mediation processes at the college. The individual does refer to Dr Fitzgerald's item of correspondence, which we discussed earlier. The individual wishes to know if he is referred to in Dr Fitzgerald's correspondence. It does not appear to be the case. I propose we note this item and inform the individual accordingly. We will be discussing our engagement with the University of Limerick and whistle blowers at the university as part of our work programme in a few moments.
I have that note in front of me today because I have read on several occasions that the Irish Strategic Investment Fund is a State-backed fund. We do not know if it is backed by the State to the tune of 1% or 99%. We have no concept. It is good PR to put out that it is a State-backed fund. The extent to which it is backed by the State might be substantial or minuscule; I have no idea. We need to know what the State's investment in that fund is.
Six billion euro. It did come from part of that and is now managed through this system. The NTMA publishes a list of investments each year. I think it should be able to give it to us straight up. Again, I will ask. If that information arrives in the near future, I will want to make sure that this reply about the State's share in the Irish Strategic Investment Fund is circulated as soon as that reply arrives.
Broadband. This arose last week in the debate on broadband. We asked last week about the €730 million involving one of the other NTMA companies that had a special allocation for social housing and have already agreed to write to it. We want to know how many houses have been or are being built on a local authority by local authority basis. We covered the housing bit separately last week.
We do not even need the letter. We welcome the publication of the minutes. Does that include the reports, like those that come from the Committee on Finance, Public Expenditure and Reform, and Taoiseach, that will not be published?
If there is insufficient information in the minutes, we can come back and ask for further information. Let us test some of those minutes and see how we get on with them. We can certainly come back and ask for further information.
That is the end of correspondence and we now move on to statements on accountancy since the last meeting. There are four on the screen. There is the carbon fund clear audit opinion, the University College Dublin clear audit opinion and the usual issue about the deferred pensions in the education sector and payments totalling €5.4 million to 75 suppliers for goods and services where procurement procedures did not comply with Government procurement guidelines. We will group them all together. Next is the Limerick and Clare ETB, clear audit opinion with the same issue of a material level of non-compliance with national procurement rules. There is also Laois and Offaly ETB, clear audit opinion and attention is drawn to the disclosure statement on internal control that Laois and Offaly ETB would welcome an increase in internal audit resources. We covered that last week.
Here we go again. UCD and Limerick and Clare ETB are not in compliance with public procurement guidelines. Is there any information on the statement of internal control in the accounts?
For today, we will note that the procurement issue is one to which we will come back. For anyone who wants a breakdown or background on that, it is in the published financial statements laid before the Oireachtas.
The next item is work programme and we want to talk about the meetings early next year. We are not proceeding with the meeting with the Irish Prison Service next week. Is that agreed? I think everyone is agreed to that. Time is very tight and we will come back to that. Thursday, 17 January, we are having the first meeting back with the Department of Justice and Equality about the Irish Prison Service and Vote 21. Hopefully that is agreed.
The following Tuesday is a separate and private meeting with the whistelblowers and complainants in relation to the University of Limerick. We will pencil that in now, but when we go into private session for another item, we might have a brief discussion on the structure of that meeting. We will do that in private session in a moment, but we will publicly set that date for it now.
On Thursday, 24 January, we will deal with the Comptroller and Auditor General's special report on the Waterford Institute of Technology and his special report on the remuneration of certain staff in the University of Limerick and the Institute of Technology, Sligo. Those organisations, the Higher Education Authority and the Department of Education and Skills will attend on 24 January. All of these have to be confirmed.
On 31 January, we are back to our housing meeting. We will have the Department of Housing, Planning and Local Government and specifically the Irish Council for Social Housing. We will deal with the Vote for housing and planning. We will try to conclude our meetings about housing at that meeting.
On 2 February, we have the Vote from the Minister for Finance and the Comptroller and Auditor General's report on chapter 1 deals with the financial outturn for 2017. Chapter 2 deals with the collection of pension contributions due to the Exchequer. Chapter 3 deals with the control of funding for voted public services. Chapter 22 relates to the Irish Fiscal Advisory Council. We will have to make arrangements as to whether it will take a separate slot at the meeting or be a part of the bigger meeting because I think the council is meant to be independent. We will work out the format of that.
Can I just say that I felt we wasted our time last week when had a couple of people before the committee in relation to cybersecurity? We really wasted our time. We should not be overlapping witnesses. It is not an efficient use of time.
The politics of broadband took over and dominated. I know there was a myriad of items Deputies would want to discuss about cybersecurity in the normal course of events which were hardly touched on at all because the other issue dominated.
We will see about arranging a separate 30-minute slot for the Irish Fiscal Advisory Council. It has made its presentation to the finance committee. That is where they discuss that. Does Mr. McCarthy do an audit for a small amount of money on the running of the fiscal council?
It is just a minor issue. We might keep that to a separate 30 minutes. We will not repeat the meeting with the finance committee at which the council presented recently because that happens several times a year. We will not duplicate the finance committee's work.
The accounts for the Department of Finance for 2017 will come after that, the national central fund to which I referred earlier.
Mr. Seamus McCarthy:
The issue there is instructions by the Department of Public Expenditure and Reform for the collection of pension contributions where there are charges for services. That Department has been running that. Pensions policy is an issue for the Department of Public Expenditure and Reform rather than the Department of Finance.
We will hold chapter 2 separately then.
I am suggesting Thursday, 14 February for some of the broadband providers that members have indicated they are keen to have attend. That will broaden our knowledge, and the public's knowledge, of the process.
Exactly. We can come to who we are inviting in private session.
On 21 February, we are dealing with the Kildare and Wicklow ETB and the Department of Education and Skills, so hopefully we will have proper reports at that stage. Will we have the 2016 audit of Kildare and Wicklow ETB? Is Mr. McCarthy finishing the 2015 audit?
There are lessons to be learned.
On 28 February we will deal with the Taoiseach's group of Votes and, because it is a group, we will have to work the mechanism there because it deals with the Vote for the Attorney General, the CSO, the Office of the Chief State Solicitor, the DPP and the President's Establishment. Are there separate Accounting Officers for those?
We might have to allocate an hour. We might not get them all done, but we will provisionally put them in at this stage.
On 7 March, we are back to the Department of Justice and Equality for everything else outside the Irish Prison Service.
There are other items on the work programme that we will set dates on. We said we would come back to public-private partnerships and the Dormant Accounts Fund. Procurement is another one we will come back to. We said we would come back to the sale of the greyhound racing track in Harold's Cross. We are awaiting further correspondence. We want to deal with the whole issue of protected disclosures, medical negligence and the State Claims Agency. Broadband providers are on the list. Incontinence wear and nursing home charges have been mentioned in correspondence. I recently spoke to the person with whom we were in correspondence to indicate we would meet him in January but if they are to meet members of the committee-----
I think we got a bit confused. As I understood it, after our last meeting when Deputy O'Connell was here, we would ask the HSE. The Brothers of Charity Services in Ireland would not have to come, but we would ask their representatives and go through this. The issue was that they seemed to be applying rules and people were being charged, some of whom were reimbursed, others of whom were reimbursed from a certain date but not the whole time period. The person who contacted me took issue with the information that Mr. Ray Mitchell of the HSE provided to this committee. I have unilaterally written my own rebuttal to Mr. Mitchell, putting a series of questions. I sent it off lately, so I have no response. It would be good to have the HSE and the Brothers of Charity before the committee but Deputy O'Connell said at the meeting, and others agreed, that such a hearing could be broadened to include other indirect charges being applied to long-term residents in nursing homes.
We will discuss it but there is definitely a broader issue with nursing home charges, of which that is one of the charges. We will discuss it in that context when we have the HSE in but in the meantime, I have given a commitment that I would meet the people who wrote those directly in the new year in any event. We will circulate the time of that meeting. It will not be a Committee of Public Accounts meeting; we will meet in a meeting room and any member who wants to come to that meeting is welcome.
The risk management side is well worth looking at. The second HSE issue which is not in the work programme that I am raising for the first time is HSE outsourcing, not under sections 38 and 39, but in respect of adult services for people with disabilities, how that is handled, how it is supervised and the amount that is provided. That is something that at some point in the first half of next year it would be well worth specifically looking at.
For example, myriad organisations provide adult services for people with autism straight after secondary school or there are also agencies doing this work and being directly supervised by the HSE. Reasonably often I come across issues relating to failures where services are supposed to be provided but they turn out to be inappropriate and the person does not go to the service. It is being paid for but the service is not being used in such circumstances. The level of supervision of that leads to the inadequacy of the services.
On the State Claims Agency, we touched on thalidomide the last time the HSE was in. I would like to pursue the outstanding issue of the eight or nine people with it again because we posed a number of questions the last time that were not adequately answered. Of the remaining eight or nine thalidomide sufferers who are not being accepted as being part of the scheme, one is a judge and one works here in the Houses. It is not a significant sum of money and we could be more compassionate about how we are dealing with it. I do not know whether other members agree.
I agree with that in the sense that this came up almost by accident when we looked at the cases that were set out in the annual report and we began to ask a few questions on it. We need to tease it out. As I understand, it there are 34 live cases and that figure has changed.
I raised it at the time and then we received correspondence subsequently that filled out the information. We received more information but it is unfolding so I would certainly like it to be included when the State Claims Agency is in.
We will write to the agency in the meantime based on what we discussed at the meeting because I am looking at the letter we had here this morning, No. 1768B, and the heading is matters related to medical negligence, open disclosure, and CervicalCheck and thalidomide-related litigation. I might not be doing the State Claims Agency a favour but I am glancing through that correspondence and I do not see-----
In the correspondence I just referred to, the thalidomide issue is dealt with in paragraph 4 on page 3. The final sentence states:
Subsequently the Chief State Solicitor's Office, due to pressure on resources in its office, came off record in the Thalidomide matters and was replaced by Hayes, Solicitors, a firm with an established track-record in the Defence of medicinal product liability litigation. For transparency purposes, payments to Counsel, whether on or off panel, are published biannually on the SCA's website. No payments have been made to any of the State's Counsel in the Thalidomide cases.
I will ask the secretariat to go through that correspondence and the earlier correspondence and if there are any outstanding questions from the day we were here we will ask the secretariat to submit them.
Of course the State cannot be a soft touch or anything like that. We are talking about eight or nine people and it is being defended in the High Court and we have Hayes Solicitors on record, which is a private firm that is incurring a cost to the State and all so on. The State's default position will be to defend every case and I would love to know why it is throwing money at this when there are so few people who are clearly thalidomide sufferers. I would like an explanation because it would be much cheaper to mediate and get it done.
We raised the issue the day the State Claims Agency was here. We have had two items of correspondence from it in the meantime, I am asking the secretariat to check the two items of correspondence and if it has not answered us on the issues raised around thalidomide, we will go back and ask. It will be in before us again.
The issue is the mediation. It says in the transcript that mediation had been ongoing and then it was subsequently explained that nobody has officially terminated it but there has been no mediation since December 2016. Those are all issues to be explored.
We need to have a look at the structure of the State Claims Agency and we have not done that sufficiently. It became clear when we were looking at the CervicalCheck issue that proceedings had to be issued in court before the agency even knew about it. It did not seem that there was a mechanism to do open disclosure in a way that was non-legalistic. That has to be part of what we do when we examine the agency because we will have to keep going back on individual streams of work that relate to different issues such as CervicalCheck or thalidomide unless we get to that.
I will make a general point related to how long things take. Regarding the summit on the catastrophic infants' cases, the agency in its correspondence states, "The Agency only ever becomes involved when the letter of claim is received." By that time, the solicitor has done all the research and all the work and then submits his or her claim. The agency further states, "This has the inevitable consequence that the Agency has to "play catch-up" as it can only commence its liability and causation investigations when it receives a letter of claim." By definition, then, the system is geared such that there will be a significant time lag. This is another example of it. The agency will be before the committee again as part of our work programme but we will write to it in the meantime if there is a gap in its responses to the issues we raised with it the last day.
We will now go into private session.