Jack Chambers (Dublin West, Fianna Fail) | Oireachtas source

As Senators are aware, the Taoiseach is the specified person and the Department of the Taoiseach is responsible for certain administrative functions regarding the IBRC commission. Unfortunately, the Taoiseach cannot participate in today's debate due to prior commitments. He has asked me to attend in his place and extend his apologies to the House.

The commission was established in June 2015 following the making of a Government order, which was approved in draft by this House and the Dáil. The commission's terms of reference, which were also approved by both Houses, were the subject of extensive discussions between all parties in the Oireachtas both at the outset and during the lifetime of the commission.

In summary, the commission was required to investigate all transactions, activities and management decisions at the IBRC other than those relating solely to the acquisition of assets by the National Asset Management Agency, which occurred between 21 January 2009 and 7 February 2013. They either resulted in a capital loss to IBRC of at least €10 million, or 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.

In November 2015, the commission submitted an interim report that indicated 38 transactions came within its terms of reference. The interim report also raised significant issues regarding legal professional privilege, banking confidentiality and its terms of reference. As a result, following consultations with all Oireachtas parties, bespoke legislation was enacted in 2017 to provide a new legal basis for the commission. The commission's terms of reference were also amended following consultations with Oireachtas parties.

Under the commission's amended terms of reference it was charged with, in its first module, investigating the Siteserv transaction, which had been identified by Dáil Éireann as a matter of significant public concern. The commission was also charged with, in its first module of work, reviewing and reporting on the principles and policies within IBRC in respect of the setting of interest rates generally during the relevant period.

The commission's terms of reference also provide for investigating matters relating to: (a) the processes, procedures and controls which were operated by IBRC; (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; (c) whether it can be concluded that the transactions were not commercially sound; (d) whether any unusual share trading occurred; and (e) whether the Minister for Finance or his Department was kept informed, where appropriate, in respect of the transactions concerned, and whether he, or officials on his behalf, took appropriate steps in respect of the information provided to them.

The commission sent its report on the Siteserv transaction to the Taoiseach on 29 July 2022. Following consultation with the Attorney General, the Taoiseach arranged for the report to be published and laid before the Houses of the Oireachtas on 7 September 2022. The commission's report runs to more than 1,500 pages. Unsurprisingly, in a report of its length, it goes through all aspects of the Siteserv transaction in detail. The commission has made extensive findings of fact which are of great concern to the Government. It is clear from the recent debate on the report in the Dáil, and media commentary, that these concerns are shared across the political spectrum.

I think it would be useful to briefly highlight some of the commission's main findings. For example, the commission determined that it can be concluded that the bank made its decision to approve the sale of the Siteserv group in good faith but based on misleading and incomplete information provided to it by the company. The commission found that there were two parallel processes during the sale process. One of these was below the surface and meant that decisions were made in the course of the Siteserv sale process which were clearly and manifestly improper, and which undermined the integrity of the process. The commission also determined that it can be concluded that the Siteserv transaction was, from the perspective of the bank, so tainted by impropriety and wrongdoing, that the transaction was not commercially sound. It found that the bank might, subject to certain assumptions, have recovered up to €8.7 million more than the €44.3 million it agreed to accept in the sale.

It is worth putting on the record that many of the allegations made in the Oireachtas and elsewhere were not upheld by the commission. For example, the commission found that many aspects of the transaction, and the behaviour of a number of parties, including in IBRC itself, were appropriate. It also found that the procedures and controls that were operated by IBRC at the relevant time regarding the Siteserv transaction were fit for purpose and that there is no evidence that any unusual trading in Siteserv shares occurred. The commission also established the approach taken by the IBRC regarding the setting of interest rates for individual loans, and how these decisions were reached, and made no adverse findings.

The report did make a number of negative findings regarding some individuals who were closely involved in the sale of the company. I think that everyone in this House will agree that people be held responsible for their actions but, of course, it is also important that we do not prejudge anything and we must wait for the outcome of the follow-up investigations, which are to be completed as a result of the commission's findings. In this regard, the commission recommended that the report be brought to the attention of the relevant authorities concerning a number of taxation, company law and bankruptcy issues. Accordingly, as per the commission's recommendations and on foot of advice from the Attorney General, the Taoiseach arranged for the report to be brought to the attention of the Revenue Commissioners, the special liquidators of the IBRC, the Corporate Enforcement Authority, the Central Bank and the official assignee in a bankruptcy case. These bodies are now responsible for conducting any appropriate investigations on foot of the report.

I thank Mr. Justice Brian Cregan, who was the sole member of the commission, for his work in compiling the report. Clearly, it was a very onerous task. He deserves great credit for his thorough analysis of a very complex and detailed commercial transaction. However, I believe that the length of time that the commission took to complete its report on the Siteserv transaction raises broader questions about the effectiveness of the commission of investigation model. To illustrate this point, it should be noted that it took the commission over seven years to produce its report on the Siteserv transaction. During that time the commission has cost over €12 million approximately, excluding third-party legal costs incurred by witnesses who appeared before the commission, which have not yet been paid. The commission signalled in its interim report dated 25 July 2022 that after it had finished the report on Siteserv it would begin to work on the third-party legal costs. I understand that this process is now under way. The final cost of the commission will only be known when the commission makes its determination on these third-party costs. It is clear that the total cost is going to be extremely high in any case.

The commission signalled in its interim report dated 25 July 2022 that it would provide its report on the other 37 transactions covered by its terms of reference before the end of this month. I understand from the Taoiseach that he has now received this report and that he is currently considering it. Before the contents of the report are made public the Taoiseach is consulting with the Attorney General and further details will be provided when that process has concluded. It should be noted that the commission previously indicated that there will be significant, if not insuperable, difficulties in progressing the investigation into the other 37 transactions.This is because, for example, many of the companies involved are located outside the jurisdiction of the State or no longer exist if they have been dissolved or gone into receivership. I will use the limited time available to me at the end of the debate to comment on the most significant issues that are raised and to provide clarification to colleagues on the issues they raise.