I welcome the opportunity to discuss the report of the IBRC Commission on Investigation on the Siteserv transaction today.
I believe that it is important to debate the contents of this report in the Dáil for two reasons.
Firstly, the Commission was established as a result of issues raised on the floor of the House, and its Terms of Reference were the subject of extensive discussions between all parties in the Oireachtas, both at the outset and during the lifetime of the Commission.
And secondly, the Commission has made very serious findings which are of great concern in relation to the behaviour of some parties during the course of the Siteserv transaction, with consequent implications for both our taxpayers and the reputation of Ireland’s corporate sector.
While we all might share some frustrations at the length and cost of the Commission’s work, and I will return to that, I think it is important at the outset to state that this has been a worthwhile exercise. What the Commission discovered and has reported shines a light on completely unacceptable practices and vindicates the effort that has gone into it.
I want to thank Mr. Justice Brian Cregan, the sole member of the Commission, for his very comprehensive and detailed report.
Before discussing the report, I also want to confirm that while as Taoiseach I am responsible for certain administrative functions in relation to the Commission, the Commission is entirely independent in all respects of its work.
Deputies will recall that the Commission was established by the Government in June 2015 following approval of a draft Order by both Houses of the Oireachtas.
Deputies may also recall that the Commission submitted an Interim Report in November 2015, raising significant issues in relation to legal professional privilege, banking confidentiality and its terms of reference.
As a result, following consultations with all Oireachtas parties, a bespoke piece of 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 Oireachtas parties.
Under these amended terms of reference, 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, and which 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.
The Commission had established that 38 transactions came within these terms of reference and it was charged with, in its first module, investigating the Siteserv transaction, which had been identified by Dail Eireann as a matter of significant public concern.
The Commission was also charged with, in the first module of its 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 extend to investigating matters relating to:
(a) the processes, procedures and controls which were operated by IBRC,
(b) whether there is prima facie evidence 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.
My Department received the report on the Sireserv transaction on 29 July and it was published and laid before the Houses of the Oireachtas on 7 September 2022, following consultation with the Attorney General.
The Commission’s report is more than 1,500 pages long and goes through all aspects of the Siteserv transaction in an extraordinary level of detail and makes extensive findings of fact.
The Government has noted the findings of the Commission with considerable concern.
The Commission has 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 there were two parallel processes during the sale process:
(i) the “above the surface” sale process organised by Siteserv and its advisers, in which the company chose bidders, evaluated the bids, decided to grant exclusivity to Mr O’Brien’s bid and then signed and completed the sale to Mr O’Brien; and
(ii) the “below the surface” process where certain events occurred in the course of the Siteserv sale process without the knowledge of the Bank. This “below the surface” process meant that steps were taken and decisions made in the course of the Siteserv sale process in a manner that was clearly and manifestly improper, and which undermined the integrity of the Siteserv sale process.
The Commission has 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 states 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.
But, of course this is not the only loss to the taxpayer. The very significant costs arising from the Commission are also as a result of this impropriety and wrongdoing.
It is also worth putting on the record that some of the allegations made in this House and elsewhere were not upheld by the Commission. Many aspects of this transaction, and the behaviour of a number of parties including in IBRC itself, were appropriate, and this should not be lost in commentary either.
The Commission found that the procedures and controls that were operated by IBRC at the relevant time in relation to the Siteserv transaction were fit for purpose.
The Commission found there is no evidence that any unusual trading in Siteserv shares occurred.
The Commission established the approach taken by the IBRC in relation to the setting of interest rates for individual loans, and how those decisions were reached, and made no adverse findings.
I would also like to take the opportunity to place on the record that the Commission found that there was nothing inappropriate in me, as then Leader of the Opposition, in meeting with Mr. Neil Ryan, then of the Department of Finance, in 2015. It also found that Mr. Ryan did not disclose any information gained in the course of his official work to me.
While it is important not to prejudge the outcome of follow-up investigations, people should clearly be held responsible for any breaches of the law.
In this regard, the Commission recommended that the report be brought to the attention of 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, I have 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.
Commission’s Next Steps
The Commission is currently preparing a report with its recommendations on the investigation of the other 37 transactions that fall to be considered as part of its work. It is required to submit this report before the end of October 2022.
Upon receipt of this report the Government will make a decision on the future of the Commission. However, the Commission has 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 as they have been dissolved or gone into receivership.
In making that decision, the Government will also be cognisant of the time and cost of the Commission to date.
Length of Time Elapsed
In fact, the length of time this Commission has taken to complete the report on the Siteserv transaction raises broader questions about the effectiveness of the Commissions of Investigation model.
When the Commissions of Investigation Act was enacted in 2004 it was hoped that it would enable quick and cost-effective investigation of matters of significant public concern to be investigated.
However, it is now more than seven years since the IBRC Commission was established. In that time, it has cost approximately €12 million.
However, this does not include third party legal costs that have been incurred but not yet paid and which are a matter for the Commission to determine.
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 final cost will only be known when the Commission makes its determinations on third party costs. But the cost is clearly going to be too high in any case.
In light of the length of time that has elapsed since the Commission was established, and the level of costs arising, I suggest that the Oireachtas might wish to consider whether we can do anything to improve the regulatory framework for statutory investigations.
Of course, in saying this we need to tread carefully because Commissions must be independent in their investigations and adhere to fair procedures and natural justice.
Indeed, it must also be borne in mind that some Commissions of Investigation have been able to complete their investigations in a quicker and more cost-effective manner.
But, the broad range of investigations completed to date under the Commissions of Investigation model might suggest that the model is not entirely or equally suitable for all types of investigations.
For example, it may be that using this model for investigations into complex corporate transactions is not as suitable as using it for issues related to public administration where it is possible to confirm facts more easily.
There are broader questions about the cost and efficiency of our legal system more generally which remain a matter of concern to the economy and society.
We also need to examine the role and effectiveness of the permanent regulatory and investigatory framework.
The Government is open to ideas from other Oireachtas parties on these issues, because, clearly, our ultimate objective is to ensure that, as far as possible, in Ireland we have a regulatory framework which promotes and ensures a culture of compliance and good ethical standards in matters of both public and corporate affairs.
Indeed, pursuit of this objective has been a core value of this Government since coming into office. To date, we have made significant progress with initiatives to combat corruption and white-collar crime.
For example, earlier this year we established the Corporate Enforcement Authority, which will have the autonomy and resources to thoroughly investigate suspected wrongdoing. We are increasing staffing levels by nearly 50%, including doubling the number of Gardaí, and the Authority’s budget has also been increased by almost 30%.
An all-of-government implementation plan to progress the recommendations in the Hamilton Review into Economic Crime was published in April 2021. This sets out 22 actions to enhance enforcement and prevention capacity in the criminal justice sphere. Five actions have already been completed in full, and a number of others have been significantly advanced.
For example, the Criminal Procedure Bill has been enacted, the Judicial Council has been engaged with in relation to the development of judicial training in respect of complex economic crime/corruption cases, a Forum of senior representatives from the relevant operational bodies was established in June 2021, and the Competition Amendment Act was signed into law on 29 June.
There has also been significant progress to implement other recommendations, including greater powers for investigating agencies to tackle economic crime and corruption; the establishment of an Advisory Council against Economic Crime and Corruption; reform of the Ethics Acts; and additional resourcing for enforcement agencies.
In conclusion, the Commission’s report has highlighted improper and unacceptable behaviour on the part of some in relation to the Siteserv transaction.
It is right and important that the impropriety and wrongdoing in this process has been brought to public attention.
It is right and important that the relevant statutory bodies will now have the opportunity to investigate this impropriety and wrongdoing, and take the action deemed appropriate.
This experience raises a question mark for us as a legislature over what we might do to make any future such investigation more timely and less expensive, but critically, it also demonstrates the need for us to keep refining and improving the regulatory framework, and indeed the culture in corporate and public affairs in our country, to prevent the need for future investigations of this nature in the first place.
Go raibh míle maith agaibh.