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Statement on The Establishment of Commission of Investigation

The Government today approved a draft Order and Terms of Reference for a Commission of Investigation into NAMA.  The Terms of Reference provide for an investigation into Project Eagle, but could be amended to provide for further modules at a later stage.
The Government agreed to establish the Commission of Investigation following a number of meetings with the leaders of the opposition, where the consensus view was that a Commission should be established.  The opposition were also consulted on the Terms of Reference.  The PAC also recommended that a Commission be established.  
The draft Order will now require approval from both the Dáil and Seanad before the Commission is established.

Commission of Investigation (National Asset Management Agency)

Terms of Reference

1. In the first module of its work, the Commission is directed to investigate and 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) regarding the National Asset Management Agency’s disposal of its Northern Ireland loan portfolio referred to as Project Eagle.

2. In particular, the Commission is to investigate, having regard to NAMA’s statutory obligations under the National Asset Management Agency Act 2009 and appropriate commercial practice:

(a) if the disposal strategy for its Northern Ireland loan portfolio (including the timing of the disposal and sale as a single portfolio) was appropriate in the circumstances;

(b) if the minimum price applied (and how it was derived) in relation to its Northern Ireland loan portfolio were appropriate in the circumstances;

(c) if the management of the sales process by NAMA, (including procedures and controls applied, timeframes, access to potential bidders and record-keeping) was appropriate in the circumstances and demonstrated best corporate governance;

(d) if any conflicts of interest arising in relation to members of NAMA’s Northern Ireland Advisory Committee were managed appropriately in the circumstances;

(e) when and how NAMA became aware of fees allegedly payable to a former member of the Northern Ireland Advisory Committee by bidders on Project Eagle, and if this issue was managed appropriately by NAMA during the sale of the Northern Ireland loan portfolio, and

(f) if decisions and actions of the Minister for Finance and the Department of Finance relating to the disposal of the Northern Ireland portfolio, including communications with members and officials of the Northern Ireland Executive and meetings with potential bidders, were appropriate in the circumstances.

The Commission shall investigate anything arising outside the State that it considers relevant to any of the matters set out from (a) to (f) above in so far as the Commission considers it practicable, appropriate and reasonable to do so and considers procedures adopted for that purpose can be carried out without unduly delaying the completion of the investigation and with a substantial expectation of being able to obtain the evidence necessary for the investigation.

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 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. The Commission shall avail of appropriate and independent commercial and financial expertise to inform its investigation.

7. Where it deems it appropriate, the Commission shall draw on information already available, including that gathered by, and contained in reports of, the Comptroller and Auditor General and the Public Accounts Committee and the Northern Ireland Assembly Committee on Finance and Personnel.

8. The Commission shall provide an interim report to the Taoiseach within three months of the date of its establishment and shall provide a final report on this first module of its work by the end of June 2018, subject to section 6 (6) of the Commissions of Investigation Act 2004.

9. These Terms of Reference may be amended under section 6 (1) of the Commissions of Investigation Act 2004 to require the Commission to undertake further modules of work in relation to certain other transactions to which NAMA has been a party or to the operations of the Agency.