Tuesday, 19 July 2016
Commission of Investigation (Irish Bank Resolution Corporation) Bill 2016: Second Stage
As Members of the House are aware, the Bill is being brought forward to give additional powers to the commission of investigation into the Irish Bank Resolution Corporation. These provisions are necessary, given the nature of the investigation involved, to ensure the commission can effectively perform its functions. I am presenting the Bill on behalf of the Tánaiste and Minister for Justice and Equality who has responsibility for the Commissions of Investigation Act 2004, under which the IBRC commission of investigation was established. I reiterate that the Government shares with the rest of the House a desire to ensure there will be an effective, efficient and timely investigation into the issues of significant public concern which have been raised in relation to IBRC. This shared determination across the Oireachtas has underpinned the extensive consultation at all stages with the Opposition, initially by the Minister for Finance and subsequently by the Taoiseach.
Before I outline the provisions of the Bill, I would like to set out the background to the commission of investigation and also mention some of the issues raised in the determinations and interim reports of the commission which have given rise to the provisions being considered.
The commission of investigation into certain transactions conducted by the Irish Bank Resolution Corporation was established in June 2015 following the approval of a draft order by both Houses of the Oireachtas. The commission is charged with investigating matters which are considered by the Government and affirmed by the Houses to be of significant public concern in respect of IBRC and making any report required under the Commissions of Investigation Act 2004 on its investigation. In accordance with its terms of reference, the commission is required to investigate certain transactions, activities and management decisions which occurred at IBRC between 21 January 2009, being the date of nationalisation of IBRC, and 7 February 2013, being the date of appointment of the special liquidators to IBRC, and which either resulted in a capital loss to IBRC of at least €10 million during that period, whether by consequence of a single transaction or a series of transactions relating to the same borrower or entities controlled by the same borrower; or are specifically identified by the commission as giving rise or likely to give rise to potential public concern about the ultimate returns to the taxpayer.
In November 2015 the sole member of the commission submitted an interim report. The report sets out in detail the substantial work undertaken by the commission up to that point and the outcome of the interaction between it and the special liquidators, the Department of Finance, the directors of IBRC, the Central Bank of Ireland and the Irish Stock Exchange. It is evident from the interactions, as detailed in the report, that a number of significant issues arose in the course of the commission’s work, in particular issues regarding the ability of the commission to obtain and admit certain information and documents into evidence. In the light of these concerns, the Taoiseach engaged with the leaders and representatives of the Opposition. On behalf of the Taoiseach and the Tánaiste, I thank those Members for their observations and contributions during that consultation process, on foot of which, a legislative solution was proposed. It was agreed, again with members of the Opposition, to further consult the sole member of the commission on the proposed legislative response. Following these consultations, the Taoiseach and the Opposition agreed on 2 June to proceed with the drafting of urgent legislation - the Bill before the House - to address the matters raised by the commission.
As I said, the first interim report of the commission from November 2015 outlined a number of significant issues which had arisen in the course of the commission’s work, including its view that the issue of confidentiality precluded it from admitting certain documents Into evidence; its view that the issue of legal professional privilege precluded it from admitting certain documents into evidence; its view that a duty of professional secrecy under section 118 of the Companies Act 1990 precluded it from receiving certain documents held by the Irish Stock Exchange; and the need to address matters relating to potential conflicts of interest and the management of the workload of the commission. These are all issues which are being addressed, to the greatest extent possible, in the Bill. As I said, there has been close consultation with the commission in the development of these provisions. The approach adopted in the Bill is to introduce bespoke legislation which effectively applies the Commissions of Investigation Act 2004 with specific provisions relating to the IBRC commission of investigation.
The Bill contains nine sections, of which sections 2, 3, 4, 6 and 7 provide for additional powers to be assigned to the IBRC commission of investigation which were identified as lacking under the Commissions of Investigation Act 2004 and consequently impeded the commission in performing its functions under the Act. The investigation into the transactions and other acts undertaken by IBRC during the specified period is of a nature which warrants these additional powers being given to the commission. Therefore, all of the provisions of the Bill provide for the IBRC commission of investigation solely and do not extend or in any way alter the application of the 2004 Act to other commissions of investigation, ongoing or otherwise. Sections 5 and 8 make provision to assist the management of the workload of the commission and ensure potential conflicts of interest are avoided.
Section 2 addresses certain powers of the commission. Subsection (1) confirms that the commission may make such orders and determinations and give such directions as are necessary for the performance of its functions. For that purpose the commission shall have all such powers, rights and privileges as are vested in the High Court or a judge of that court. The need for such an amendment is set out in the determinations published by the commission - for instance, sections 7.90 to 7.94 of determination 1. A similar provision is also available to tribunals of inquiry under the Tribunals of Inquiry (Evidence) Act 1921, as amended. One issue which arose during consultations and the drafting of the Bill is the extent to which this would draw the commission closer to the tribunals of inquiry model. However, the commission format remains distinct in terms of its regular review and reporting back to the Government.
Subsection (2) addresses the finding of the commission of investigation set out in its determinations and chapter 6 of the first interim report to the effect that the commission lacked the necessary statutory powers under the Commissions of Investigation Act 2004 to engage in a balancing of interests which may trigger the public interest exception to what is otherwise a duty of confidentiality. This arose as the relevant section of the 2004 Act - section 21 - expressly stated nothing in that Act "shall compel any person to disclose information or documents over which a duty of confidentiality is asserted and found by the Commission to apply". Subsection (2), therefore, confirms that the commission may admit documents in relation to which a duty of confidentiality is claimed.
Subsection (2)(b) refers to Article 27 of the EU market abuse regulation. Article 27 provides for the non-disclosure, on grounds of professional secrecy, of information received pursuant to that regulation. This would apply to information received by the Irish Stock Exchange and is similar to the obligation in respect of professional secrecy under section 118 of the Companies Act 1990 and which is to be disapplied in respect of the disclosure of information by the Irish Stock Exchange under section 7 of the Bill. The sole member of the commission has confirmed that there may be circumstances where he may request information which may fall under the provisions of the EU regulation. Again, I reiterate that these provisions are introduced solely for the purpose of this investigation and the particular circumstances identified by the commission. Without the introduction of these provisions, the commission is clear that it’s ability to carry out its work would be severely limited.
A definition of "document" is introduced in section 2(3) so as to include tapes, discs and sound recordings, as well as written material. Again, this is to ensure the commission will have access to all information needed to effectively conduct the investigation.
Sections 3 and 4 are introduced to ensure the commission may seek the directions of the High Court or refer any question of law to that court on the performance of its functions. It is clear from the determinations published by the commission that it had considered seeking the directions of the courts on certain matters but that the 2004 Act does not provide any mechanism for a commission to seek such directions. Sections 3 and 4 make the necessary provisions.
Section 5 is an important section and addresses two concerns identified by the commission. The first relates to the efficient management of the workload of the commission. As the House is aware, one aspect of the terms of reference for this commission is the investigation of transactions during the relevant period which involved capital losses to IBRC of more than €10 million. As noted In the interim report, 38 such transactions have been identified by the special liquidators to IBRC. Effectively, this would involve up to 38 investigations. I understand it has been agreed in consultation with the Opposition that the terms of reference for the commission will be amended so as to adopt a modular approach to these investigations. However, in the light of the potential for a large number of investigations, the commission has recommended - it certainly appears prudent - the appointment of additional members to it. While the appointment of more than one member to the commission is possible under the 2004 Act, the Act does not permit those members to operate in divisions or panels; rather, the members operate together as a single commission. Therefore, this section of the Bill proposes that where an additional member or members are appointed to the commission, they operate in divisions and, importantly, that the report and findings of any single division be a report and findings of the commission as a whole.
While it is not intended to appoint an additional member at this stage, this provision recognises and responds to the range of transactions potentially to be investigated by the commission. Permitting it to sit in divisions will also mean that the concerns identified by it in its first interim report about a possible conflict of interest between a member of the commission in relation to any particular transaction can be avoided by allowing that transaction to be investigated without the involvement of that member, should the need arise.
Section 6 addresses the disclosure of information by the special liquidators to IBRC to the commission of investigation. Determination 1 of the commission addresses the assertions of a duty of confidentiality and legal professional privilege which have been asserted by the special liquidators and which the commission has found to apply.The issues regarding the duty of confidentiality have been addressed through section 2 of the Bill, in respect of which I have spoken. However, in its determination, the commission further found that it had no power under the 2004 Act to admit into evidence documents over which a claim of legal professional privilege was asserted and found to apply. While it is understood that the special liquidators offered a limited waiver of legal privilege for certain transactions to the commission, none the less the commission considered that it could not proceed further or admit into evidence such documents.
It is clear from the commission’s decision on legal advice privilege set out in determination 1 that the commission was only seeking to obtain those documents that the directors of IBRC have received in the past, which relate to legal advice they may have received in respect of the write-offs of certain loans by IBRC and are the subject of the current investigation. While the special liquidators were willing to disclose the documents to the commission for the purpose of the investigation, they did not consent to the documents being provided to any third parties, although the special liquidators agreed to consider waiving privilege on a case by case basis. The inability to forward such documents to the former directors of IBRC would, in the view of the commission, deprive them of their right to fair procedures and to respond to the commission in a meaningful way.
Section 6 addresses the concerns raised by the commission. First, subsection (1) introduces a general requirement on the special liquidators to comply with all directions by the commission under the 2004 Act. With respect to the assertion of legal privilege by the special liquidators in respect of documents previously received by the directors of IBRC, subsection (2) will amend the Irish Bank Resolution Corporation Act 2013 to insert a new provision Into section 9 of that Act.
Section 9 provides for the Minister for Finance to issue instructions and directions to the special liquidators and the new subsection (2A) to be inserted by the Bill will provide that the Minister may, for the purpose of enabling the commission of investigation to perform its functions, give a direction to the special liquidator to do or refrain from doing a specified act. This may include a direction from the Minister to the special liquidators to waive legal professional privilege. There is no obligation on the Minister to issue such a direction and it will only arise where the commission requests the Minister to do so and informs the Minister, in writing, that the direction is necessary to enable the commission to perform its functions and it is in the public Interest to do so. The basis for issuing such a direction would be the connection to the purposes of the IBRC Act, as set out under section 3 of that Act and which, I remind this House, include "to protect the interests of the taxpayer".
Section 7 will disapply section 118 of the Companies Act 1990 to enable the Irish Stock Exchange to provide confidential information to the IBRC commission, which may admit it into evidence. Determination 3 of the commission, published in April, concluded that certain documents sought from the Stock Exchange were confidential pursuant to section 118 which provides for professional secrecy in respect of documents obtained by the Stock Exchange in pursuance of its functions under Part V of the 1990 Act in relation to insider dealing. As this is effectively a statutory duty of confidentiality, section 7 of the Bill will disapply it in respect of the disclosure of information to the commission.
In terms of the substantive provisions of the Bill, section 8 will amend the Commissions of Investigation Act 2004 but only in so far as it applies to the IBRC commission of investigation. Paragraph (a) amends the definition of "document" under the 2004 Act so that it replicates the definition under section 2 of this Bill. Paragraph (b) amends section 34 of the 2004 Act, again only in so far as it applies to the IBRC commission.
Under section 34, a draft of any report by a commission of investigation must be distributed, in advance of submission to the specified Minister, to any person who is identified or identifiable in that report. The provision in section 8(b) will limit the distribution of the report to persons in respect of whom there is an adverse finding. This has been specifically requested by the commission to reduce the level of distribution which would otherwise be required on the basis that there is a strong likelihood of many persons being identified in the report but in respect of whom there would be no adverse finding.
Section 9 deals with the commencement of the legislation. Senators will agree that although this is not a long Bill, it will provide significant additional powers to the commission of investigation into IBRC. Given the conclusions and recommendations reached by the commission in the determinations and interim reports published to date, and following consultation with the Opposition and commission of investigation during the drafting of the Bill, all of these provisions are proposed to ensure the task set by the House in June 2015 is conducted as effectively as possible.
I remind Senators that the very significant public concerns regarding certain transactions carried out by IBRC, which were recognised and acknowledged by this House, must be addressed in a comprehensive manner.
I would like to return to a matter I briefly mentioned. Given the number of transactions undertaken by IBRC, which have been identified and involve losses of greater than €10 million, I know that amended terms of reference are being brought forward which propose a modular approach to the investigation with a focus in the first phase on the Siteserv transaction, being an issue of significant public concern raised in the House. This is a pragmatic approach which will allow the commission to focus its efforts in the first phase. A draft order with the revised terms of reference will be brought before the Houses later this week for approval. I also understand that, as requested by the commission under section 6(6) of the 2004 Act, the Taoiseach has recently agreed to extend the timeframe for the commission until the end of October 2016. This will allow the commission to continue its preparatory work while the legislation is being enacted and the terms of reference amended as I have outlined.
I thank the leaders and members of the Opposition for their contribution in reaching a solution to the issues raised by the commission which would, if unresolved, have undermined the ability of the commission to reach findings in the investigations involved. I look forward to hearing the contributions of Members.
I welcome the Minister to the House. The Fianna Fáil Party supports the Bill, which implements a series of specific legislative recommendations by the commission of investigation into IBRC. As the Minister indicated, the commission has encountered issues with legal and professional confidentiality which have impeded the completion of Its work. The Bill explicitly addresses these barriers and will enable the commission to issue a report by the already delayed October 2016 deadline.
The commission of investigation into IBRC was established in July 2015 following continuous calls by Fianna Fáil and other Opposition parties to uncover suspect actions surrounding the sale of Siteserv. The commission encountered fundamental legal barriers to successfully completing its work. Issues around legal privilege, professional secrecy, confidentiality and conflicts of interests were highlighted by the commission. As I stated, the Bill explicitly and solely addresses these issues, which should have been addressed when the commission of investigation was established, rather than during its work.
The Government initially vigorously resisted establishing a commission of investigation but retreated in the face of concerted public and political opposition. Fianna Fáil stated from the outset that the use of the Commission of Investigation Act 2004 would be necessary on account of a number of dubious activities around the Slteserv sale. The Government’s haphazard reaction was to grudgingly establish separate inquiries before finally conceding that it was necessary to use the Commission of Investigation Act.
It is important to briefly outline the reasons for the establishment of a commission of investigation into IBRC. Siteserv was sold by IBRC to a Denis O'Brien owned company at a loss to the State of €119 million. This loss was further reflected in other sales by IBRC. The commission must question and address the following questions arising from the Siteserv transaction. Why was there a surge in share dealing activity in Siteserv prior to its sale? Why were shareholders in Siteserv paid €5 million for an effectively insolvent company? Why were other bidders apparently excluded from the sale process? Was the Department of Finance kept fully informed of the sale process and what actions did departmental officials take on foot of concerns expressed about that process? Why did the Minister for Finance, Deputy Michael Noonan, not provide vital information in response to parliamentary questions tabled in the Dáil? This series of questions needs to be fully investigated and answered by the commission of investigation. I wish the Bill a speedy passage through the House because it is important that the commission of investigation reports without further delay.
I support the Bill because the Cregan commission needs all necessary powers to discharge its functions. With regard to the confidentiality issue raised by section 21 of the legislation, which I put before the Houses as Minister for Justice, Equality and Law Reform, it has always been a mystery in my mind as to when an amendment was made to the section extending the confidentiality rule to virtually every transaction before a commission. I have never been able to solve this mystery and I still ponder why it is the case.
As Senator Diarmuid Wilson stated, this commission of investigation arises mainly out of the Siteserv controversy. It is notable that on 25 April 2015, the former chairman of IBRC stated that the board had rejected a Department of Finance proposal to appoint a senior civil servant to the board on the basis that such an appointment would be unsuitable. In the same article in The Irish Times, the former chairman stated that a Mr. Woodhouse had been kept out of discussions on Siteserv because he personally handled Denis O'Brien's relationship with IBRC.In the same article in The Irish Times, he stated a Mr. Woodhouse had been kept out of discussions regarding Siteserv because he personally handled Mr. Denis O'Brien's relationship with IBRC. He stated a different executive in IBRC, Mr. Tom Hunersen, had handled the Siteserv transaction. This is worrying because, three years earlier, a posting appeared on the broadsheet.iewebsite suggesting Mr. Aynsley, Mr. Hunersen and Mr. O'Brien were socialising together at the time when the transaction in case was taking place.
It is also worrying that Mr. O'Brien was reported in 2014 by The Irish Timesas having made a major investment in a Massachusetts-based IT firm in which Mr. Hunersen was one of the moving parties. The former chairman of the IBRC claimed Mr. Woodhouse had stepped aside from this transaction. He seems to have re-emerged recently in the context of the story in The Irish Timesthat many Members of this House read last week. Again, the question arises as to whether there is a connection between him and Mr. O'Brien.
A more fundamental question arises as to who is organising the campaign of intelligence-gathering of Mr. Hollingsworth, the so-called journalist engaged in coming to Members of this House, among others, and passing himself off as one seeking to identify the source of leaks about Mr. O'Brien's dealings with IBRC. These are very serious issues.
This matter is particularly relevant because, according to the story in The Irish Times, a major British security firm was the recipient of the material collected by Mr. Hollingsworth in Dublin. We heard later, according to evidence given in the High Court, that a USB key appeared on the desk of Mr. O'Brien and that he, for the first time, discovered the material that Mr. Hollingsworth was privy to in Dublin.
The use of an English security firm in this respect is not a new phenomenon in Ireland. We should remember also that there was elaborate industrial espionage and surveillance in the context of the takeover of the Independent News & Media group at the time between the O'Reilly interests and the O'Brien interests, if I may use that term. In that case, newspaper reports indicated that 11 operatives operating from a Dublin hotel were engaged in fairly extensive surveillance of the then managing director of Independent News & Media and that it was eventually determined that an English espionage firm or intelligence-gathering firm called Esoteric lay behind that. Surprisingly, Independent News & Media, which later came under the control of Mr. O'Brien, largely speaking, has been unable to work out who commissioned that investigation.
I am also worried in another respect. It was reported in the media that Irish Water had concluded an extensive contract with a company in the Isle of Man chaired by Mr. Leslie Buckley and in which Mr. Denis O'Brien was a large investor. He is described in its publicity material as a leading Irish entrepreneur. The function of that company is to advise Irish Water against the hacking of its sites. It appears the main business of this company in the Isle of Man, which is owned by Mr. O'Brien and chaired by Mr. Buckley, an associate of Mr. O'Brien, concerns computer security and countermeasures against computer hacking. Although no particular figure was put on the computer security services of Irish Water, it is interesting that it was suggested in the media at the time that, over five years, €1.2 million was spent on this kind of activity on the part of Irish Water. One must bear in mind also that at least one of the newspapers controlled by Mr. O’Brien has, since the emergence of the dispute about water charges and the legislation we considered in this House some days ago, run a fairly heavy campaign, with many editorials and articles, on the subject of Irish Water. This is a serious matter.
I will finish on two points. Last week in a different context, although Mr. O’Brien had a walk-on part in it, the Ceann Comhairle, as Chairman of Dáil Éireann, publicly queried whether it would be necessary to introduce a system of fines to strengthen the powers of the Chair to prevent the abuse of Dáil privilege. This House has its own Standing Orders, its independence and its own Committee on Procedure and Privileges. As a member of that committee, I do not believe Members of this House are disposed to abusing their privilege at all, nor do I believe the use of financial penalties to preserve the privacy of important people the Irish political and economic environment should be permitted by this House. I do not believe we should go down that road. It is for the other House to make up its own mind on fines for its Members.
We must remember that these Houses are the defendants in a court action brought by Mr. O’Brien. He has sued the institutions of this State. He has also sued individual Members of these Houses on occasion and has threatened to do so on many more occasions. Free speech is very important. As far as I am concerned, the Cregan commission is dealing with just one set of issues, the activities of the IBRC, only some of which involve Mr. O’Brien or companies connected with him.
However, there are other major issues to be borne in mind arising from the Moriarty report, which found Mr. O’Brien had indirectly channelled the guts of €1 million to former Minister, Deputy Lowry, after the awarding of a telecommunications licence to him. It found that elaborate efforts to deceive the Moriarty tribunal had been made, including the falsification of letters to cover up the involvement of the relevant parties. I wish all speed and every success to the Cregan commission. I welcome this legislation. Members have an obligation to be fair but not to be entirely impartial but it is important that these issues be dealt with in a process that is fair and impartial and, above all, has the means of establishing the truth, because the Irish people do deserve the truth.
I, too, welcome the Bill. The points made by the Cathaoirleach when speaking on behalf of the Fianna Fáil group were pertinent. It is a pity that this legislation is necessary and that it was not dealt with in the first instance. When justice is delayed, the lapse of time is a serious issue. We have lost time here but I hope the commission will be focused. I agree with the modular approach; it is appropriate. At least we can get answers on specifics as opposed to a myriad of issues, and we will not have to wait a very long time to get answers.
Senator McDowell made comments about the Ceann Comhairle. When travelling to Clare on Friday evening, I watched the interview with the Ceann Comhairle.To be fair, the question that was put to him on Foynes was a leading one. However, I had expressed concern that if we were to go down that road, it would be perceived to be protecting the powerful and wealthy in society. It is not appropriate but, as has been said, it is up to the other House to conduct its own affairs. I hope this House would never succumb to that type of - to put it in simple terms - penal, schoolteacher-like approach. The Members of this House who exposed the Siteserv issue and other matters have done the State enormous service. It was incredible to see the lengths to which Mr. O'Brien went to silence that. It beggars belief that the Houses of the Oireachtas are being sued by any individual. I noted with interest, and followed very closely, the O'Reilly-O'Brien debacle at Independent News and Media and I learned a great deal in terms of the covert investigations run out of hotels in Dublin. I did not know that went on, although it does not surprise me. Given that the Houses of the Oireachtas have been sued, nothing surprises me any longer. There is a great deal that is rotten in the corporate world in this country and we, as parliamentarians, have a duty to ensure it is rooted out.
When the IBRC liquidation happened, I thought we were looking at an avalanche. The operation was so big that it was probably very difficult to control, especially when the country was in the position of disposing of assets to reduce its debt and exposure. We did not hold our nerve as we should have done. We see now how things have improved. Any schoolchild will tell one that there are peaks and troughs in economics. We were in a very depressed trough at the time, but matters were always going to improve. The people went through a great deal of hardship to ensure the country was brought to a better position. It was a great pity that IBRC, under the direction of the Department of Finance and others, felt it necessary to offload billions of euro worth of assets, not just at home but abroad as well. We panicked and should have held our nerve, but that is only my view. Had we held our nerve and done things in a more controlled fashion, we might not be in this situation now and the commission of investigation might not have been necessary. We are where we are, however, and the Bill is very important. It is vital that it be passed as quickly as possible. If it needs to be amended still further on the suggestion of the commission of investigation that it needs more powers, we should not be found wanting in amending it accordingly.
I thank the Minister for providing an overview of the Bill. It is very positive that there was engagement with the Opposition. That is new politics in reality. This morning, a Senator asked for a definition of "new politics" and this is a clear one. A year ago, there would not have been what my briefing note refers to as "extensive consultation" with Opposition parties. The Opposition would have been given a courteous and short briefing but there would not have been extensive discussions and negotiations. That epitomises new politics and the Bill, when enacted, will be all the better for it. It will facilitate getting to the root of at least some of the problems caused as a result of the liquidation of IBRC and what followed.
This is a last-ditch attempt to salvage a commission of investigation the Government never wanted. It remains open to debate whether it was by design or by flaw that the commission was so badly set up in the first instance. Nevertheless, I hope that what comes out of the Bill and the new terms of reference is a commission of investigation that can do its job.
IBRC is a zombie institution comprising the completely discredited Anglo Irish Bank and Irish Nationwide. These banks have cost the Irish people €64 billion and became an excuse for Fianna Fáil and then Fine Gael-Labour Party Government to undermine the rights and hollow out the public services of the Irish people. These banks were the worst of the worst and represent a black stain on Ireland's reputation. They are a reminder of how the political class failed us. We should remember that, in February 2013, a decision was taken in the middle of the night to liquidate IBRC. The debt was not wound down, of course, and our children will be paying it off for a long time to come. Indeed, my son, who is 14, will be 54 by the time the burden of debt is lifted. The cost of servicing the debt is €7 billion a year. That is €7 billion that could be spent on health, education, job creation and infrastructure.
The biggest issue with the Bill is that anything that happened after the liquidation date is still out of bounds, despite the many questions that have been raised about what has happened since. Despite involving billions of euro belonging to Irish citizens, the process is still completely opaque. When Deputy Pearse Doherty started to ask the Minister for Finance about write-downs at IBRC, the latter did not take it very seriously. Indeed, it took a great deal of work and cajoling to get him to accept that there was a problem in the first instance. Then the Taoiseach appointed the Comptroller and Auditor General to examine the issue. Eventually, we got a commission of investigation. As we know now, it was set up with little thought regarding the legal obstacles involved. The interim report last November highlighted the biggest issues, including confidentiality and problems relating to the timeline. As such, we are here again trying to put Humpty Dumpty together. It is interesting that Fianna Fáil is supporting the Bill but not the NAMA investigation. At least, that was last week's position. I am not sure what is the position this week.
The country cannot stand still because the lawyers of one of the bank's clients are of the view that he has the power to stop any investigation he chooses. There is always a danger of litigation but that is not a valid reason to stop looking out for the public interest. The people remember that these allegations were sparked by certain individuals getting away with sweetheart deals. They believed what they heard because it made sense. They know there are small cliques with enormous power operating in the country and that these play by their own rules. The corruption and cronyism did not, of course, end with Tom Gilmartin's experiences with Fianna Fáil. This Government continued to preside over the very corruption, cronyism and greed which are the root cause of our inability to provide for our citizens. These are not victimless crimes. Very few politicians, bankers or businessmen will ever go to prison no matter what they do, but the public insists that we do our best to find the truth.
Nobody was surprised that the special liquidators kicked up a fuss when the commission came sniffing around. KPMG is the wrong company for this job because it is part of the protected elite and has so many fingers in pies in the State that it could never carry out the work effectively. One of the problems here is that the previous Government appointed the fox to guard the henhouse. KPMG was the auditor at Irish Nationwide, which is one chunk of IBRC. It has an interest in the liquidation that goes beyond what it is paid to do. Its interest is not that of the Irish people. The new power given to the Minister to direct the special liquidators is at the core of the Bill and is long overdue. The Minister should not be hesitant to use the powers as necessary.
The terms of reference encompass a modular approach. The Siteserv transaction must be the focus of the first module. It is the reason we have a commission of investigation and is where the public interest is most focused. After that, it is clearly logical to home in on the largest transactions.The notion of a more general area of investigation being added to the first module should not distract from the Siteserv issue. The extension of the deadline for report will be moved but it is important to send a clear signal that only in exceptional circumstances will a further extension be considered. If there are discrete modules, then interim reports should be published as they are completed. Any increase in the budget must be justified and implemented tightly.
We support the Bill in the hope it can salvage the mess that was caused by Fianna Fáil and made by Fine Gael. It only considers half the picture because it stops at the point of liquidation. The most important issue now is to get to the truth about Siteserv. This is where our focus and that of the commission should be firmly fixed. Members should imagine all the money that could be saved if only those who consider themselves to be untouchable told the truth. We must make them tell the truth and I hope the Bill helps with that process.
I welcome the Minister of State. We had the pleasure of his company for the debate on the Paternity Leave and Benefit Bill as well.
On behalf of the Labour Party, I support the Bill and I wish the Cregan commission every success on its fact-finding mission into the details of the potential losses at IBRC. The Bill helps the commission to investigate losses incurred by IBRC and, accordingly, the State and the taxpayer between January 2009 and February 2013. Everyone will be aware of the legal obstacles faced by the commission during this work and, indeed, they were identified at the time of the writing the first interim report to the Taoiseach on 12 November 2015. The commission made clear that, in its view, certain legislative changes would be required to overcome legal difficulties in respect of matters, including bank and customer confidentiality, legal professional privilege and so forth, which the Minister of State outlined. Workload management is also an issue and it is an important component of the legislation. Access to documents and information is an issue but capacity of the commission to do this work is also an issue.
The is a bespoke Bill, as the Minister of State said. It is not designed to amend the Commissions of Investigation Act 2004 generally but rather to provide for specific amendments to enable this commission to fulfil its task effectively and efficiently. It has become clear from the two interim reports produced by the commission in November 2015 and April of this year that additional time will be needed. The Minister of State said that its work will extend to the end of October next. Unfortunately, that has been a feature of commissions of investigation over the years. Inevitably, terms of reference are drafted too broadly and as commissions embark on their work, the timeframes become too tight. However, the commission-of-investigation model is a better, more cost-effective and efficient model than that relating to tribunals of inquiry. I pay tribute to Senator McDowell, who, as Minister for Justice, Equality and Law Reform, introduced this model as a clear improvement on what had become the hugely cumbersome and costly tribunal process.
While the costs of running the commission are not insignificant, they come nowhere near the cost to the State of the write-offs under investigation by it. Others have referred to the write-offs of IBRC loans in respect of Siteserv, which cost more than €100 million. However, in total, there were a number of transactions in the period covered with write-offs greater than €100 million. Clearly, the work of the commission will be invaluable in establishing the facts of these transactions. I looked into the issue of the estimated cost of the commission and the latest approximation I have is from the second interim report. Up to April 2016, the cost was estimated to be approximately €600,000 to cover salaries, legal bills, rent, etc., which is relatively low compared to the amounts under investigation.
As Members of both Houses have indicated, the work of the commission was due in no small part to the extensive work done by Deputy Catherine Murphy. She took on significant work trying to establish the facts and raise concerns about the Siteserv transaction, to which others have referred. A good deal of litigation is ongoing, not least the litigation against these Houses being taken by Mr. Denis O'Brien. Those who read the two-page spread on this in last Saturday's edition of The Irish Timeswill be conscious that these are highly complex matters. In a nutshell, the commission is being asked to investigate potential irregularities and flaws in transactions that may have cost the State and, therefore, the taxpayer millions of euro.All of us will support the need for the commission to establish the facts around these transactions in an effective and timely manner.
I refer to the issue of the workload management of the commission. Section 5 of the Bill will enable the commission to operate in divisions. That has become an issue because the commission will need the facility to appointment an additional member or members, if necessary, to work in divisions. Conflict of interest is also an issue. The Minister of State identified that the commission, in its first interim report, pointed out that where there is a conflict of interest involving a member of the commission in respect of a transaction, that transaction could be investigated by another member if divisions were permitted, which is important.
The revised terms of reference deal with workload management. A motion has been tabled referring to a Government order clarifying and amending the original terms of reference. It is sensible that a modular approach would be adopted and that the commission would initially be asked to report on the single identified transaction only - on which most public attention has been focused - namely, that relating to Siteserv which was raised in the Oireachtas. It makes sense to revise the terms of reference in this regard to assist the commission to ensure its workload is manageable and does not become unduly cumbersome, given the breadth of the original terms of reference and the number of transactions it was intended to cover. I am happy to support the Bill.
In welcoming the Minister of State, I must point out that it is important that the issue before us, which is a matter of public concern, should be addressed and investigated. Anomalies and irregularities in transactions that potentially cost the taxpayer must be investigated. The Government's approach to this has been transparent, notwithstanding the fact that Deputy Catherine Murphy brought the issue to the floor of the Dáil. The interim report called for different changes and we should all consider them.
Mr. Justice Cregan deserves our support in his work. It is important that we receive the report in a timely manner. The last thing people want is an ambling process whereby the work of the commission continues beyond the timeframe. I am not sure if the Minister of State outlined the date by which the commission must report and I apologise if he did. A timeframe is crucial and it should be adhered to. Equally, it is clear, not only from the debate in the Oireachtas but also from media commentary, that it is important that the full facts be obtained. In whatever guise or form the truth comes out, it is important that we have clarity and that the investigation brings certainty.
The Minister of State referred to the need "to ensure that the commission can effectively perform its functions". In public life, there is a notion in some quarters that responsibility and duty to the taxpayer is a careless reference. It is not; it should be what we do.Those of us who are legislators or public representatives and those of us who are charged with managing any aspect of life, be it the health system, education, justice or whatever, have an obligation and duty to represent the taxpayer in everything we do.
The first interim report makes for interesting reading. It calls for legislative change, which we all accept. Senator Bacik mentioned the terms of reference. I am coming in a roundabout to where I want to get. We all welcome the Commissions of Investigation Act model. Those of us who were not Members of the Oireachtas when we had the tribunal of inquiry model remember every day there was media reporting and people made their names through impersonating the people before the tribunal and good luck to them. However, let us consider the cost and time.
This brings me to the point I really wanted to speak about today. I will be very careful not to stray into any matters before the courts. I refer to the powers we give to Oireachtas committees. I accept the people have voted on the matter; I have no issue with the people being sovereign and they make the decision. It is how we, as Members of the Oireachtas, carry out our business in terms of our committee system. I refer, in particular, to the role of the Committee of Public Accounts. I was formerly the Chairman of the Oireachtas Joint Committee on Health and Children. The Minister of State, Deputy Stanton, was a very fine Chairman of the Oireachtas Joint Committee on Justice, Defence and Equality. If the Committee of Public Accounts seizes on an issue, then everybody else has to walk away and cannot touch the matter, cannot debate the matter, cannot call in witnesses and cannot carry out any work related to it.
I wish to make a broader linked point. We need to look at how that rule is interpreted. The Minister of State in his remarks here said that the commission of investigation had to have its legislative powers changed. I believe - I have no skin in the game other than being a parliamentarian now - that if we are to charge Members of the Oireachtas with being the taxpayers' representatives or the citizens' representatives, then how they carry out their duties requires us, as Members of the Oireachtas, to change how we do our business. I may incur the wrath of some people.
Senator Bacik referred to divisions in section 5 in terms of how they do their business. Similarly for the Houses of the Oireachtas committee system, we must find a mechanism whereby different committees can work together. The proof of this was when the Minister of State, Deputy Stanton, and I held joint meetings of Committees on Health and Children and Justice, Defence and Equality on certain matters. I do not believe the Committee of Public Accounts is the only committee that has the capacity or should have the autonomy to do work on an issue; there should be a joint approach with different committees.
I thank the Minister of State for bringing the Bill before the House. I hope the other powers that be will pay notice to what I said. I say that not out of any malice. I want to see our committee system, which was a very effective voice in the last Parliament, continue. That means we must change how we do our business. The role of the Committee of Public Accounts needs to be reviewed in the context of seizing on matters to the preclusion of other committees.
I thank the Senators who contributed to the debate. As I said in my opening speech, the Government wants an effective, efficient and timely investigation into the issues of significant public concern which have arisen relating to certain transactions conducted by IBRC.
I acknowledge the very substantial preparatory work carried out by the sole member of the commission to date and which is set out in the interim reports and determinations published to date. The sole member of the commission acknowledges the significant task facing the commission in his reports. The Bill's provisions seek, to the greatest possible extent, to facilitate the commission in conducting its work, to ensure that the information and documents sought by the commission will be made available to it and to provide for a more efficient management of the workload where possible.
Senator Wilson suggested that the difficulties addressed by the Bill should have been dealt with at the time of the establishment of the commission. The issues being addressed today only came to light during the preparatory work of the commission itself. These are set out in detail in determination 1 published in November 2015. Following that determination by the commission, the Government immediately engaged in consultation with the Opposition to address the problems identified by the commission.
I welcome Senator McDowell's support for the Bill. He also raised a number of concerns which highlight the need for the investigation. I acknowledge Senator Conway's support for the Bill. I assure him and all Members of the House that the provisions of the Bill fully address the commission's concerns and that there has been extensive consultation with the sole member in developing these provisions. The commission also confirms in the second interim report that while the special liquidators initially claimed legal professional privilege over a number of documents furnished to the commission, the special liquidator subsequently, following a request from the commission, informed the commission that it was willing to waive that privilege in respect of the Siteserv transaction. The commission is satisfied that the issue of privilege in respect of the Siteserv transaction has been resolved.
Regarding the issue of the commission's workload, Senator Bacik is correct that section 5 will address the concerns raised by the commission in its report, including any conflicts of interest.
I again thank the Members for contributing to the debate and look forward to the passage and enactment of the legislation.