Leo Varadkar (Dublin West, Fine Gael) | Oireachtas source

For clarity, I will restate the fact that the commission is an independent commission of inquiry. My Department has an administrative role but does not run the commission. It is not operating as our creature in any way, so I am not in a position to answer questions that can only be answered by Mr. Justice Cregan, who is heading up the commission.

It is, as Deputies will be aware, investigating first of all the Siteserv transaction module which, to the best of my recollection, does not involve any mortgage. The commission, when it was set up and as we will all recall, was very much a demand of the Opposition. Government parties at the time warned about the difficulties that could arise from asking a commission of investigation to investigate commercial transactions. The nature of asset prices, just like houses, just like shares and just like everything else, can go up and go down. It will be very difficult to determine whether or not the best price has been secured for any asset. Asset prices, by their very nature, fluctuate over time.

It is estimated that it may cost between €20 million and €25 million for the commission of inquiry to do its work.

In terms of the timeline, I will make inquiries into whether I can request an indicative timeline. I do not see why it would not be permissible for me to ask that question, but I will ask it, if it is permissible for me to ask it. Obviously, I cannot give any assurance to anyone on a timeline because that will depend on how the inquiry goes and it would be very much in the hands of the judge in that regard.

The commission has requested an increase in fees that it pays to its counsel. Under the rates agreed by the Government for counsel engaged by any commission of investigation, a senior counsel is paid €788.27 per diemand a junior counsel is paid €394.14 per diem, excluding VAT. The commission requested that the fees be almost doubled to €1,500 per diemfor a senior counsel and €800 per diemfor a junior counsel. The commission maintained that the current rates were inadequate and becoming problematic for it, in that they were not sufficient to attract and retain counsel with the relevant commercial law experience and expertise to analyse the financial issues and enormous volumes of documentation involved in this complex investigation. In support of its view, the commission drew a comparison with the higher rates that were paid to counsel currently engaged in the disclosures tribunal.

I consulted representatives of other parties in the Oireachtas about the commission's request at a meeting on 14 November. At the meeting, concerns were expressed about the impact on the cost of this and the knock-on impact on the cost of other commissions of investigation if the request were to be granted. Reflecting on the views that I heard at the meeting, my Department subsequently wrote to Mr. Justice Cregan and informed him that it was not intended to agree to his request for an increase in fees in light of the concerns about the impacts on cost. I do not accept that the work involved in a commission is the same as a tribunal. For example, a commission's hearings are held in private while a tribunal's are held in public. That is a very different nature.

Since it was established to the end of January this year, the commission has spent €1.23 million on legal fees in respect of two senior counsel and six junior counsel. It should be noted that the counsel work for the commission as required rather than on a full-time basis. As required under the Commissions of Investigation Act 2004, the IBRC commission's legal cost guidelines were prepared at the outset by the commission and the Taoiseach as specified by the Minister, with the consent of the Minister for Public Expenditure and Reform in consultation with the commission.

In its fourth interim report last December, the commission stated its view that the guidelines were inadequate and there needed to be proper consultation between the commission, the Department of the Taoiseach and the Department of Public Expenditure and Reform in order to establish supplemental guidelines to meet the particular needs of persons involved in the commission. The commission also stated that various witnesses had made submissions to it and were concerned that they would be out of pocket in respect of the legal expenses incurred by them in order to comply with the commission's directions and protect their own good names and reputations.

My Department has recently offered to meet the commission to discuss its proposal for supplemental guidelines and understand what the implications might be. However, reflecting the outcome of my meeting with the Opposition last November, it is not intended to agree to an increase in the level of fees payable to senior and junior counsel.

The commission is independent in its work and it would not be possible or appropriate for me to interfere with its work in any way. However, my Department did convey concerns raised at the meeting with other political leaders and, in its interim report last December, the commission stated that it was open to discussion with the Department of the Taoiseach as to how to conduct its work in the most efficient manner possible, consistent with the applicable legislative and constitutional requirements of due process, and how the duration of its investigation might be shortened. My Department, along with the Attorney General's office, has offered to explore these issues further with the commission.

In the fourth interim report in December 2017, the commission stated that it did not have details of the amount of third party legal costs incurred to date. However, in view of the large and complex nature of the investigation, I think it can be assumed that the costs arising will be substantial. To illustrate this point, I would point to the second interim report in April 2016. The commission stated that the special liquidators had informed it that the costs incurred by them in assisting the commission were €2.78 million, comprising their costs up to 31 January of €2.3 million, exclusive of VAT, and legal costs up to 15 March of €456,000. The Department of Finance had informed the commission that its external legal costs were €246,000. Third party costs were also likely to be claimed by the former directors of IBRC and some other parties. The costs are likely to have increased very substantially since that report in April 2016. It will, of course, be a matter for the commission to make a determination on the validity of claims for third party legal costs at the end of its investigation.

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