Tuesday, 23 November 2021
Ceisteanna - Questions
Commissions of Investigation
12. To ask the Taoiseach the names of each commission of investigation established by his Department in each of the past ten years; the costs incurred by each; the number not yet concluded; and the expected time by which they will be dissolved. [55848/21]
The only commissions of investigation for which I am the specified Minister under the Commissions of Investigation Act 2004 are the Irish Bank Resolution Corporation commission of investigation and the National Asset Management Agency commission of investigation. Both commissions are fully independent.
The IBRC commission was established in June 2015 following consultation with Oireachtas parties. It is investigating certain transactions, activities and management decisions at the IBRC and in its first module it is investigating the Siteserv transaction. Its original deadline was 31 December 2015 but following several requests from the commission, and after consultation with the Opposition, its timeframe for reporting has been extended. Most recently, in October this year, I granted a further request for an extension, this time until the end of March 2022. From the time of its establishment to the end of October 2021, the commission cost €10.75 million approximately, excluding third-party legal costs that have been incurred but not yet paid, which will be a matter for the commission to determine at the end of its investigation.
In its seventh interim report in February 2020, the commission of investigation estimated that the final cost of the Siteserv investigation will be between €12 million and €14.5 million. This estimate assumed the investigation would be completed by the end of 2020 and not the end of March 2022 as is now the case, and excluded costs or delays associated with possible judicial review hearings. The commission also acknowledged that it involved a substantial degree of uncertainty regarding the amount of costs actually recoverable by the parties before it and assumed its legal costs guidelines are not successfully challenged.
The NAMA commission of investigation was established in June 2017 following consultations with Opposition parties to investigate the sale by NAMA of its Northern Ireland portfolio, known as Project Eagle. Its original deadline for reporting was 31 June 2018 but following several requests from the commission, its timeframe for reporting has also been extended. Most recently, in September 2021, I granted a further request for an extension, this time until the end of December 2021. From the time of its establishment to the end of October 2021, the commission cost €3.75 million approximately, excluding any third-party legal costs incurred but not yet paid and which will be considered by the commission at the end of its investigation.
Additional information not given on the floor of the House
The estimated cost for the NAMA commission of investigation when it was established was €10 million approximately, excluding the cost of any litigation that may arise. The commission has not provided an updated estimate for the cost of its investigation but the expenditure incurred to date suggests it is unlikely to exceed the original estimate.
The Fennelly commission is the only other commission of investigation for which the Taoiseach was the specified Minister in the past decade. Its work related to certain allegations made by Garda Maurice McCabe and its final report was completed in March 2017. The total cost of that commission of investigation was €3,528,658.
The commissions of investigation are not working in many ways. Justice delayed is justice denied and what we see happening at the moment are commissions of never-ending investigation. Accountability is simply not happening. It has been argued in the Dáil previously that commissions of investigation are used to kick issues into touch and take them out of the political environment. The IBRC commission of investigation was set up following a scandal that broke in 2015. It was an incredible issue which has just disappeared from most people's consciousness. Deputy Michéal Martin is the third Taoiseach to be in a position to grant an extension to that particular commission of investigation.
The financial costs to the State of these commissions of investigation are eye-watering. We are talking about massive amounts of money. A previous Taoiseach admitted that the final cost for the IBRC commission could exceed €30 million. This means that €30 million is taken away from some sector in society that really needs it. The NAMA commission of investigation was meant to be completed in June 2018 at a cost of €10 million but the costs are spiralling on these commissions of investigation.
I have a proposal which I would like the Taoiseach to address. The Oireachtas is currently discussing various Bills dealing with white-collar crime, one of which deals with corporate authority. The Oireachtas is also dealing with legislation to give further powers to the Central Bank to enhance its ability to tackle white-collar crime. It is now necessary to reform this whole area and create one State investigation authority to deal with all white-collar crime in our society. We must build an authority that will be able to investigate this area properly. It must be of a sufficient size and have the personnel with the requisite skills and knowledge to deal with all of these elements of society. Reform in this area must mean that investigations are done expeditiously and not at massive cost to the State so that justice happens in real time, the people involved in wrongdoing are punished in real time and there is real-time accountability.
I certainly agree that the commission of investigation format is not working. The delays and
costs involved are inordinate and often by the end of the process, a lot of people are left wondering what it was all about in the first place. There is an air of Dickens's Jarndyce and Jarndyce about a lot of these commissions.
I refer to the report of the Commission of Investigation into Mother and Baby Homes as another example of where we have got it very badly wrong. I know we will be discussing this in greater depth later this evening but a number of the survivors who were outside Leinster House today are absolutely furious at the proposed redress scheme. They are angry at arbitrary time periods and thresholds for those who were in mother and baby homes being used as some sort of meaningful guide for redress. This is just typical of the way the State gets it so badly wrong. People must have spent six months in an institution to be eligible for redress, as if the human story, tragedy, hardship and trauma can somehow be equated to a particular time period or amount of money. This is an example of how the State really get things wrong. We will debate it further this evening but I would simply say that the key in such sensitive investigations and in the production of reports is to listen to the survivors and those with first-hand experience. The establishment of schemes and the production of reports must be done in step with survivors. The failure to do so has landed this Government in a mess. The Taoiseach and the Government must consider that.
On the back of Deputy Tóibín's question, I wish to raise the issue of establishing a commission of investigation into the death of Shane O'Farrell. The scoping exercise into Shane's death has not yet been completed. In the Dáil four years ago, the Taoiseach, who was then in opposition, said: "In all honesty and sincerity, it is time the Oireachtas responded in the only way possible, which is the establishment of an inquiry." The Taoiseach was correct then and I hope he will follow through on that. The failures of the policing and justice system leading up to Shane's death and the actions thereafter, including by the courts, the Director of Public Prosecutions and the Department of Justice, are significant, not just to the O'Farrell family but to the general public. This should also be of interest to the Taoiseach in his position as leader of Fianna Fáil because in 2018 the Fianna Fáil confidence and supply negotiating team raised Shane's case with the Secretary General of the Department of Justice who, in turn, committed to providing a briefing note. It was recently reported by Ms Justine McCarthy in the Sunday Timesthat the departmental memo did not inform Fianna Fáil of significant information pertaining to the driver who killed Shane. So serious was this information that the Secretary General submitted to the Minister for Justice the terms of reference for a review to be undertaken by a senior counsel into Courts Service failings. The Department of Justice did not provide the information to Fianna Fáil and the review in question did not ultimately proceed. No explanation has been provided for this. It should not be up to the O'Farrell family to try to uncover these issues. The Taoiseach must deliver this inquiry.
In response to Deputies Tóibín, Boyd Barrett and Kenny, I would point out that it was the Deputies opposite who called for, if not demanded, the investigation. It was not about kicking the can down the road, as Deputy Tóibín suggested. There was a demand from this House, and I was in opposition at the time, that the Government establish an inquiry. All in opposition wanted an inquiry into this. The Deputy is correct that the Department has estimated that it could cost €30 million but there are no precise figures. That could be the ultimate cost but no one knows.
I have been in the House for a considerable length of time. Because of the view that people have rights and so on, all inquiries take an inordinate length of time. To date, no one formula that I have seen has been optimal. Parliamentary inquiries have had difficulties and have ended up in the courts where citizens have taken the Legislature to court in respect of how they were treated. Commissions of investigation were originally brought in by Senator McDowell when he was a Minister as a means of finding a shorter route to get a more efficient outcome to inquiries because inquiries under the Tribunals of Inquiry (Evidence) Act were proving to be very long as well, and were taking years or even decades in some cases. Some tribunals of inquiry took ten years or more. Everybody is entitled to their good name and everybody is entitled to cross-examine and there are huge legal costs attached to all of these inquiries as a result of all that. One of these inquiries was established in 2015 and the others not too long after that. We should go in with our eyes wide open. Very often, the first response from the Opposition and Members of this House is to set up an inquiry. Parties are in government at different times. That is the first resort and I am not sure if it is the correct response.
In answer to Deputy Tóibín, the idea of a State investigation authority was looked at by the Law Reform Commission in 2005. It looked at public inquiries, including tribunals of inquiry. It gave the pros and cons for what it called a permanent inquiries office. In the end, it opted to go against setting it up. It said the office would have a permanent team of staff experienced in investigations and paid salaries rather than a daily rate, thus resulting in savings. The staff would have "easy access to precedents and guidance on ... procedural issues" and would provide a one-stop-shop for those seeking information on inquiries. It then gave the disadvantages. It stated: "Although a number of public inquiries may be in existence at present, there is no guarantee that there will be a need for similar bodies in the future". It also stated: "public inquiries ... are ad hoc bodies [by their nature] ... and their structure and personnel should reflect this." Deputy Tóibín might consult the report.
My view is that irrespective of what form of inquiries we decide on, they will be lengthy, given our legal system and people will never be entirely satisfied with their conclusions. It is a very challenging situation. What we need to do is build up permanent systems. We established the Garda Síochána Ombudsman Commission, GSOC. People are unhappy with GSOC. It was to hold gardaí to account for any misdeeds. Deputy Tóibín spoke about white-collar crime. The Garda should be investigating white-collar crime. Our existing agencies should be doing this work and reducing the need for inquiries in the first instance.
The Health Information and Quality Authority, HIQA, was established. It has made a transformational change compared with where we were before its establishment in 2003. Prior to that there was no inbuilt system within health to drive standards and proper approaches to public policy and the provision of healthcare facilities, taking the rights of patients into consideration.
It is a topic that needs serious discussion, but we must build up the existing capacity of the system to deal with these issues in a substantive way and avoid the necessity for inquiries that take an inordinate length of time, by any yardstick, to come to a conclusion and at great cost.