David Cullinane (Sinn Fein) | Oireachtas source

I move amendment No. 1:

1.To insert the following after “under that Act;”:- “noting the deficiencies of the draft Order, calls on the Government to amend No. 5 of the draft Order to read: ‘the Commission shall, subject to section 6(6) of the Act, submit to the Taoiseach its final report in relation to its investigation no later than 31^stOctober 2015.’; and

- further notes the deficiencies in the schedule to the draft Commission of Investigation (Irish Bank Resolution Corporation) Order 2015 and suggests the Government adopts an amended schedule that should read:‘SCHEDULE

Terms of Reference for Commission of Investigation Concerning Irish Bank Resolution Corporation Limited

The Commission is directed to investigate and to make a report to the Taoiseach in accordance with the provisions of section 32 of the Commissions of Investigation Act 2004 (No. 23 of 2004) on the following matters:

1.The Commission shall investigate all transactions, activities and management decisions, other than those relating solely to the acquisition of assets by the National Asset Management Agency, which occurred between 21 January 2009 (being the date of the nationalisation of IBRC) and 12 March 2015 (being the date when the Progress Update Report prepared by KPMG and published by IBRC was released) (the “Relevant Period”); and which either:

(a) resulted in a capital loss to IBRC of at least €1 million during the Relevant Period, whether in consequence of a single transaction or of a series of transactions relating to the same borrower or entities controlled by the same borrower (“Relevant Write-Offs”); or

(b) are specifically identified by the Commission as giving rise or likely to give rise to potential public concern, in respect of the ultimate returns to the taxpayer; and

(c) investigate the claims of verbal agreements in respect of the repayment, extension or roll-over of loans.

2.The purposes for which each such decision, transaction and activity referred to in 1 above are to be investigated are the following (and accordingly the Commission’s terms of reference extend to investigating):

(a) the processes, procedures and controls which were operated by IBRC in relation to the Relevant Write-Offs to ascertain whether the appropriate internal IBRC governance procedures and controls were adhered to in respect of the transactions under review and whether the said procedures and controls were fit for purpose;

(b) whether there is prima facieevidence of material deficiencies in the performance of their functions by those acting on behalf of IBRC, including the IBRC board, directors, management, the staff of the wealth management unit and agents, in respect of any transactions, activities and management decisions identified in 1. above;

(c) whether it can be concluded from the information available within the IBRC and relevant evidence and witness testimony as appropriate that the transactions were not commercially sound in respect of the manner in which they were conducted, the decisions made and the outcomes achieved having regard to the purposes of the Irish Bank Resolution Corporation Act 2013 set out in section 3 thereof;

(d) whether the interest rates or any extension to interest rates or any periods for repayments were given by IBRC on preferential terms that were unduly favourable to any borrower, where those interest rates resulted in a differential of more than €4 million in interest due over the standard applicable interest rates for loans of that nature or where the amendments give rise to or are likely to give rise to potential public concerns;

(e) whether, in respect of any transaction under investigation, any unusual share trading occurred which would give rise to an inference that inside information was improperly provided to or used by any persons, and in the event that such an inference does arise whether any such information was actually improperly provided or used;

(f) in relation to each transaction under investigation, whether the Minister for Finance or his Department took appropriate action to safeguard the public interest by enforcing proper governance and accountability oversight in respect of the transactions concerned, and whether he, or officials on his behalf, including the role of public interest directors;

(g) the role of the external consultants, including, but not limited to Blackstone Group and KPMG;

(h) the role of the wealth management unit of IBRC; and

(i) the beneficial owners of SiteServ shareholders.

3. The report to be made by the Commission in relation to the foregoing investigations shall:

(a) set out the scope and findings of the investigations in fulfilment of the purposes set out in 2. above;

(b) respect obligations of confidentiality and respect commercial sensitivity where those are not incompatible with the public interest; and

(c) set out such recommendations as the Commission sees fit.

4. The Commission shall report on any other matters of concern arising from its investigation of the above matters and make any further recommendations as the Commission sees fit.

5. The Commission shall exercise discretion in relation to the scope and intensity of the investigation as it considers necessary and appropriate, having regard to the general objectives of the investigation.

6. In these terms of reference:

(a) “IBRC” means Irish Bank Resolution Corporation Limited;

(b) where a contractual obligation was agreed during the Relevant Period but not executed until after the Relevant Period then the contract and any resulting loss shall be regarded as having been made during the Relevant Period;

(c) references to IBRC shall be construed as including references to Anglo Irish Bank or Irish Nationwide Building Society and any subsidiaries of IBRC, Anglo Irish Bank or Irish Nationwide Building Society; and

(d) for the avoidance of doubt, references to transactions, activities and management decisions shall be construed as including references to amendments made to the terms and conditions of loans.’.”.

I welcome the Minister to the House.

Senator Barrett mentioned Yeats earlier. It might be more apt to quote Yeats who said: "Romantic Ireland is dead and gone, It is with O'Leary in the grave" and also, "fumbling in the greasy till". Both quotes are apt reminders of what happened in this State, over a long number of years independently of what will be discussed here today.

I have found no comfort in the Bill and the terms of reference which have been agreed by the Government, Fianna Fáil and some others. I cannot for the life of me understand why Members cannot accept the Sinn Féin amendment and I do not know why it was not accepted in the Dáil. If we want a commission of investigation to be fit for purpose then the Sinn Féin amendment should have been accepted.

The Government has simply not learned its lesson. I remind Senators what happened with the water services Bill. On three occasions the Government had to come back with its tail between its legs because it got that legislation wrong and now it must bring forward a fourth Bill. Let us hope the Government does not have to come back with an amendment, although I think it will, on this motion in order to amend the terms of reference because it got things wrong, and did not listen to the Opposition parties when we warned it about this situation. Sinn Féin made its position clear. It is unfortunate that the Minister has not accepted our constructive amendment which was supported by a number of Independents. I am sure some Senators will support our amendment here today as well. A second amendment has been tabled by two Independent Senators which Sinn Féin supports.

I welcome the opportunity to speak on this motion, on behalf of Sinn Féin. We are debating an extraordinarily important issue this evening but one would not think so due to the small number of Senators present. It is unfortunate that more Senators are not present. The motion before us aims to establish a commission of investigation into certain matters affecting IBRC. Unfortunately, it does not adequately address the seriousness of the issue at hand.

Following weeks of public concern, FOIs and other revelations, the Government has announced a full commission of investigation into the running of the IBRC, from the time it was nationalised on 29 January 2009 until it was liquidated on 7 February 2013. Therein, lies the problem. This new investigation means the internal investigation announced recently, to be conducted by KPMG, has obviously been replaced. The Government's U-turn is welcome but it is a U-turn nonetheless. The forcing of the Government to establish a statutory investigation is a victory for parliamentary democracy. It is also vindication of Opposition Deputies and Senators who called for a full commission of investigation all along.

Interestingly, Government Deputies and Senators have lined up to commend Deputy Catherine Murphy, which I do as well. Such commendation did not happen during the long number of weeks she called for this type of commission to be set up. Like Sinn Féin, Fianna Fáil and Independent Deputies and Senators, she was told there was no need for such a commission. At least we are all now on the same page. I genuinely and sincerely commend the Deputy on her diligence and tenacity in pursuing the truth behind the Siteserv transaction which has led us to where we are today.

As my colleague, Deputy Pearse Doherty, said in the Dáil yesterday: "For weeks this controversy has rumbled, with the Government stumbling from poor decision to poor decision." If this commission of investigation goes ahead, along the lines proposed by this Government, it will stumble into another poor decision. We do not want to be back here in a week or month to extend the commission of investigation if more information on transactions at IBRC, dated after 7 February 2013, become public. That scenario is more likely than less likely.

The commission of investigation, as it stands, is not acceptable to the general public and, therefore, is not acceptable to Sinn Féin. Yesterday, Deputy Pearse Doherty read into the record information that he had received on the lending practices at the IBRC which included decisions taken after liquidation. Much of this points to the need for the terms of reference to be extended to beyond the date of liquidation. The Government claims it can be investigated but we remain unconvinced. It should explicitly be included in the terms of reference. There is no point asking any of us to buy a pig in a poke. The Government has done so before for other issues and we can see where that got us. I would prefer to vote on something which is clear, fit for purpose and does what it should but, unfortunately, the motion presented by the Government is none of those things.

Moreover, other IBRC issues in the public domain will be excluded from the investigation because they occurred after the date of liquidation. As much as €21.7 billion in loans at IBRC have been disposed of since liquidation. Essentially, the Minister is setting up a commission of investigation that will not look at anything that happened since liquidation and will exclude €21.7 billion loans.