Mick Wallace (Wexford, Independent)
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I thank the Ceann Comhairle for selecting this issue for debate. Two weeks ago during Leaders' Questions I raised with the Taoiseach the ODCE report on the mishandling of the investigation into the chairman of Anglo Irish Bank, Mr. Seán FitzPatrick, and his annual warehousing of personal loans from the bank. I said I had seen the ODCE report and that it was a whitewash. I wish to correct the Dáil record. It was not the original ODCE report that I had seen but a Government account of the investigative failures of the ODCE identified by Judge John Aylmer and the steps being taken to address them. The Minister published that account today. We saw it two weeks ago and I have read it twice. I am sad to say it, but it is a whitewash. In the introduction to the document the Minister wrote that the aim in publishing the account was to present the facts surrounding the investigative shortcomings identified by Judge Aylmer, learn from them and take measures to address them. Where in the document is that done? The document prepared by the Department that I have seen does not do that.

The ODCE report on the collapse of the FitzPatrick trial was requested in May 2017 by the then Minister for Business, Enterprise and Innovation under section 955 of the Companies Act 2014 following a direct request from the then Taoiseach, Deputy Enda Kenny. Section 955 requires the director to give information to the Minister and, when requested, account to a committee of the Oireachtas. This is a reporting requirement. The Minister is now telling us that, owing to section 956 on confidential information, she does not have the power to publish the report. I do not accept that. Section 956 does not relate to reports requested under section 955; rather, it deals with protecting confidential information the director has accumulated while performing his or her functions which are set out in section 949. The power contained in section 955 is not a function of the director but a reporting requirement.

The ODCE report is 250 pages long. It has been on the desk of various Ministers in the Department of Business, Enterprise and Innovation for 17 months. On the opening pages of the original report the Director of Corporate Enforcement wrote that no information or document had been omitted from it on the basis that it would prejudice the performance of any of his functions. How can the Minister refuse to publish the report when the director has stated nothing in it would interfere with his functions? I do not understand the Minister's argument.

Billy Kelleher (Cork North Central, Fianna Fail)
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Hear, hear.

Mick Wallace (Wexford, Independent)
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The way the Government has dealt with the issue raises many questions. One of the key areas on which the Taoiseach focused during his leadership battle with the Tánaiste, Deputy Coveney, was white collar crime. He said he would make it a priority, but he has done nothing about it since.

Billy Kelleher (Cork North Central, Fianna Fail)
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Nothing.

Mick Wallace (Wexford, Independent)
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If it is a priority, why will the Government not publish the ODCE report? It makes no sense.

There are many unanswered questions about the FitzPatrick trial, the ODCE's handling of it, the Garda's involvement and the decision to pursue a second trial. I may be cynical, but it seems that this suits the Government because it wants the issue to go away and is happy to hide behind the Attorney General's advice not to publish it. As legislators, we will be expected to sign off on a new body - a beefed up ODCE - in the near future, but how can we consider the new legislation when we cannot even see where the problems arose in the past? Does the Minister not believe that, in the interests of democracy and in the public interest, it is crucial that the Government publish the full ODCE report as soon as possible?

Heather Humphreys (Cavan-Monaghan, Fine Gael)
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I thank the Deputy for raising this matter. One of the most complex and largest investigations in the history of the State commenced in 2008 with the investigation by the ODCE into Anglo Irish Bank. The trial in the case ended when Judge Aylmer directed the acquittal of the defendant on all charges. Following Judge Aylmer's ruling on 23 May 2017, the then Minister for Business, Enterprise and Innovation requested a report from the Director of Corporate Enforcement on the issues arising from the trial. The report, to which the Deputy is referring, was delivered on 23 June 2017 to the then Tánaiste and Minister for Business, Enterprise and Innovation.

There has been extensive engagement with the Office of the Attorney General on the publication of the report. It was hoped initially that it would be possible to publish it. However, prior to making a final decision on publication, further consideration had to be given to the confidentiality obligations concerning information in the possession of the director, as there was a public interest in ensuring ongoing and future investigations would not be compromised by the disclosure of details of an individual investigation and the investigative process.

Owing to section 956 of the Companies Act 2014, I am prohibited from publishing reports prepared pursuant to section 955 of the Act. While it is not possible to publish the report, I have this afternoon published an account of the investigative shortcomings identified by Judge Aylmer. My aim in publishing the account is to set out the factors that led to the shortcomings in order that we can learn from them and take measures to address them. The focus of the account is on the ODCE's role in the shortcomings identified, not on the other parties involved in the case. In the interests of balance, it is important, however, to emphasise that the shortcomings in this instance should not overshadow the ODCE's track record in previous investigations and prosecutions which led to successful convictions. I accept that the standard of investigation in this case fell below appropriate standards. This happened between 2008 and 2012. The judge's findings point to the need for a broader skills base, a greater range and depth of knowledge and experience within the office and a greater appreciation of the necessity to employ appropriate procedures and manage risk.

Now that we know the factors that led to the shortcomings, our focus has shifted to ensuring we use the lessons of this investigation, note the steps already taken to address them and identify further measures to enhance the capacity of the ODCE to tackle corporate wrongdoing. Since the time of the investigation, the director has implemented multiple reforms within the ODCE that address many of the issues that led to the investigative shortcomings outlined by Judge Aylmer. The drafting of the companies (corporate enforcement authority) Bill to establish the ODCE as a stand-alone agency will build on these reforms and ensure the ODCE is better equipped to investigate increasingly complex breaches of company law. Furthermore, as part of the process of preparing the Bill, any further power identified as a requirement for carrying out the functions of the agency will be considered, as appropriate. I have secured an additional €1 million for the ODCE in 2019 to assist in its transition to a stand-alone agency.

Mick Wallace (Wexford, Independent)
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The Minister's report does not give us the answers for which we are looking.

Heather Humphreys (Cavan-Monaghan, Fine Gael)
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It does.

Mick Wallace (Wexford, Independent)
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The Minister is defending the director, but I am not attacking him. I had a meeting with him last Friday. I do not know how often the Minister has met him.

I had a meeting with him last Friday and I found him to be an impressive individual.

Heather Humphreys (Cavan-Monaghan, Fine Gael)
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And so does the report.

Mick Wallace (Wexford, Independent)
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The Minister would do him a favour by publishing his report. Not publishing it is not doing him any favours. The Minister's report does not outline any of the investigative failures or shortcomings that Judge Aylmer identified. I can tell the Minister that 15 pages of his report after he threw out the case are far more informative - 20 times more informative - than her account. The Minister's report ignores the fact that there was a deliberate attempt to build the case rather than investigate it independently and impartially. At this stage, I am convinced that we need a full independent inquiry if we are to get information and understanding and find out where we are going. We are talking about forming a new entity. That is fine. I do not have a problem with that because we need to do something serious about tackling white-collar crime but it does not stack up for the Government to hide behind the Attorney General's advice and not publish the ODCE report. I do not believe the Government can continue down this road without a full independent inquiry.

It is interesting that the House of Commons had a vote today about the British attorney general's legal advice. The British Government has just been defeated and the British attorney general will be censured in the House of Commons for refusing to publish his legal advice regarding Brexit. He also hid behind the public interest when it is in the public interest for the Government to be transparent and open. If we want transparency and openness about what happened since 2009 concerning how the FitzPatrick case was dealt with from start to finish, we need a full independent inquiry. For starters, we need to see the publication of the ODCE's original report, all 235 pages of it. I have outlined with regard to the different sections why even the director of the ODCE has pointed that there is no obstacle to publishing this report. The Government is hiding behind it.

Heather Humphreys (Cavan-Monaghan, Fine Gael)
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I am not hiding behind it. If I could publish this report, I would happily do so but if I did, I would be breaking the law and I have no desire to break the law. That is fact.

Billy Kelleher (Cork North Central, Fianna Fail)
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There are leaks from Cabinet every day.

Heather Humphreys (Cavan-Monaghan, Fine Gael)
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This investigation is now historic. It is crucial to understand the factors that led to the shortcomings identified by the judge so we can take measures to address them. Does Deputy Wallace know the measures we must take to address them? They involve strengthening the ODCE and giving it increased powers. This was the largest investigation that took place between 2008 and 2012. At that time, it was one of the most complex investigations in the history of the State. It is clear that the investigation was not up to the standard required and the ODCE did not have the skills to take it on. In 2008, the ODCE did not have one forensic accountant - not one. In fairness to the current director of the ODCE, he has upskilled, got further resources and has brought in expertise. He now has eight forensic accountants, one digital forensic scientific specialist, two enforcement portfolio managers and two enforcement lawyers. The ODCE has been put on an independent footing and will have more autonomy to get the people it needs and more money. There will be an extra €1 million for it. This will help the ODCE to do the job it must do, which is to ensure companies-----

Mick Wallace (Wexford, Independent)
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Mary Ellen Ring threw out the case in 2015.

Declan Breathnach (Louth, Fianna Fail)
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No charges.

Heather Humphreys (Cavan-Monaghan, Fine Gael)
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It will have more powers such as search and entry powers and powers that enhance its ability to gather evidence that is held electronically. The legislation will bring about improvements in the supervision of liquidators and more simplified systems when the ODCE is going to the High Court to access phone records. I want to make sure that what happened will not happen again.