PAC Meeting, Nov 5 2015
Department of Justice called and examined
Deputy John Deasy: The Chairman has asked me to finish. The last thing I have to ask concerns the issue of the foster home that we have dealt with in this committee over the past year. There are policy issues arising from that. It is currently being looked at by a senior counsel. The terms of reference are too narrow. The senior counsel will come back with his report shortly.
The third aspect of this is the release of reports by Resilience Ireland and Conal Devine on these matters. Since the last time this was brought up in this committee, the reasons given by the HSE and others have been that the Department of Justice and Equality and the Garda Síochána have expressed concerns that the investigations into these matters are ongoing. Since this was brought up in the last committee hearing, I have gotten a sense of what those investigations are.
They are serious and are being dealt with seriously by the Garda. I know the tenor and substance of them. It has gone on too long. Whatever the Garda is investigating, and I think I know what it is investigating at this point, it needs to expedite this.
The Departments of Justice and Equality and Health and Children need to express the view that any current investigations or lingering investigations into this matter need to be dealt with quickly. That is all I will say.
Mr. Noel Waters [Secretary General]: We have no knowledge of the contents of the reports in question and it is something that we have not been directly involved in. We accept that it is desirable for the information contained in those reports to be put into the public domain as quickly as possible. It is a matter of great public interest and we are strongly supportive of that.
Our understanding is that there may be difficulties around publication because of the possible implications for any Garda investigations that might be going on. We have no role in the Department in criminal prosecutions. It is a matter for the Garda and the Director of Public Prosecutions. I will convey the Deputy's concerns to the Commissioner after the meeting that the matter is brought to finality as quickly as possible.
JOHN DEASY: 'Some people give out about the Committee of Public Accounts. On occasion, however, I think we can make a difference when it comes to public policy... Sometimes this place can be the cradle of parliamentary hyperbole. Words like "disgrace" and "outrage" flutter in the air like confetti. I think we can make a difference, and if we were able to do so in this area, I would be very pleased. The work we have put in has been worthwhile...'
PAC Meeting | Oct 8, 2015
Health Service Executive
Secretary General, Mr Jim Breslin called and examined
Deputy John Deasy: This is something you [chairman, John McGuinness] have brought up as well. I imagine you know what I am going to bring up. It relates to the foster home we have dealt with and the HSE's involvement. I thank Mr. Breslin for coming in and he is welcome.
Mr. Conal Devine was commissioned to undertake a report on everything surrounding the foster home located in the south east of the country where some serious allegations have been made. We are getting conflicting views with regard to the position of a Garda investigation in this regard. The Chairman was formally notified that there would not be any prosecutions in this case. That much has been repeated to several people.
As far as the Department is aware, what is the status of a Garda investigation? I am asking because those responsible in the HSE are using the excuse of an ongoing Garda investigation. They maintain it precludes them from releasing the report, even in redacted form. What is Mr. Breslin's understanding of it? Frankly, we are getting two stories.
Mr. Jim Breslin: My understanding is that when we have checked, it seems the process of determination on the part of the Garda has not concluded. The Chairman may have been informed differently. Obviously, we do not try to intervene in the process, but we have sought to check where the process is at. We have been told it has not concluded and this may relate to a number of lines of inquiry. That rings true with the line the HSE has given us, which is that the executive is precluded from publishing until it gets word from the Garda on the matter. That is the current situation, as we understand it.
Deputy John Deasy: Since we are at that juncture, I have another question. People have contacted the Garda and have directly asked the Garda whether there is an issue with publishing this report and the Garda have said "No." Some people are making the point to us that they do not believe there is an issue with the publication of this report. Can Mr. Breslin shine any light on that?
Jim Breslin: It is our intention to do so. I have written to the committee on the subject. The Minister has requested that we organise a senior counsel, Mr. Conor Dignam, to look into the matter. One particular aspect that the senior counsel has been asked to look into relates to the reasons the reports have not been published and whether these reasons are well grounded. An interim report is due back shortly from Mr. Dignam. We hope that will assist the Deputy in the question he is asking.
John Deasy: Mr. Breslin is getting to the kernel of what we have discussed in the committee. This report was commissioned using public money. The Department of Health funds the HSE budget. I have to ask a particular question but no one seems to know the answer. What is the natural course when it comes to a report like this? Public money has been used and spent to commission it. It has been lying somewhere for years now. What role does the Department have? Do we need to ask counsel every time to examine why a report has not been published? Does Mr. Breslin get to see this report once it is finished? Does the Minister get to see this report? Does the HSE keep it locked up? I am beginning to suspect that HSE is not releasing some of these reports because they would damage the organisation and some individuals and because the HSE is potentially protecting some individuals by not publishing.
Jim Breslin: If the issue of An Garda Síochána did not arise as a matter of routine, then it would as a matter of our request. Obviously, in such an instance, we would request and get these reports - I am confident of that. In the absence of that, with the-----
John Deasy: Mr. Breslin needs to request them. Is it correct?
Jim Breslin: Yes.
John Deasy: They do not arrive on Mr. Breslin's desk as a matter of course once they are finalised. Is that the case?
Jim Breslin: No, but in the vast majority of cases these matters are not only of concern to the HSE but also to the Minister or the Department. We get many reports in these scenarios. Situations could arise which are more local and are less obviously matters of public concern, but the HSE may take the view that they are worth looking into in any event. We would not necessarily get all of those. However, in such instances where we do not have An Garda Síochána's involvement, we would request the report. In this situation where we have done so, we have not been content to wait. We have agreed with the HSE that a senior counsel will review the reports. The Ministers have been at a disadvantage in the debate on the matter because they have not seen the reports - nor have I. However, they will have the benefit of a senior counsel having reviewed the report as well as a clear position from the senior counsel.
John Deasy: Did Mr. Breslin say he has not seen the report?
Jim Breslin: No, I have not seen the report.
John Deasy: Why not?
Jim Breslin: Because of the investigations of An Garda Síochána.
John Deasy: Even Mr. Breslin has not seen the report because of the Garda. Mr. Breslin has characterised this as the routine way of doing business. Is that the case?
Jim Breslin: The routine way of business is that we would see them. It is unusual to have a Garda investigation as in this case.
John Deasy: Mr. Breslin is saying that he has contacted the Garda and he is satisfied that there are valid reasons for the report not being published at this stage and that those responsible for making that case are in the Garda. Is that correct?
Jim Breslin: We have contacted the gardaí. We have contacted the Department of Justice and Equality and the Department clarified that matters still needed to be concluded by the gardaí; they were not at an end point.
John Deasy: Until that occurs, do I take it that Mr. Breslin is not privy to that report?
Jim Breslin: Other than we have agreed with the HSE, and the HSE has facilitated access by the senior counsel to these reports. That will establish two very important things for us - one, whether the reasons for not publishing them to date well grounded; and, two, whether they are in a format that can be published.
John Deasy: I have a bit of a problem with this whole system. It comes back to public expenditure, even when one gets into redaction. If a report such as that comes back to Mr. Breslin, is it redacted? If Mr. Breslin finally gets that, does he get to see the unblemished report or does he get a redacted version? Does Mr. Breslin know?
Jim Breslin: It depends on the nature of the issues that are preventing its publication.
John Deasy: I have a bit of a problem with this now. This system really needs to change a little bit.
Jim Breslin: I agree.
John Deasy: A second set of eyes on the unredacted report is necessary when it comes to Mr. Breslin's office and the Minister.
Jim Breslin: That is why we put the senior counsel into this very situation.
John Deasy: I understand, but Mr. Breslin is telling me that even if the Department gets the report and wants to publish it, and Mr. Breslin is making it clear that his intent is to do that,-----
Jim Breslin: Yes.
John Deasy: -----Mr. Breslin might only get a redacted version of it.
Jim Breslin: I do not know, and not having seen the report, I do not know the issues of concern that might arise, but there potentially could be a situation where that might arise, or potentially not, and I do not want to prejudge that until the senior counsel reports.
John Deasy: I do not know Mr. Breslin very well but I will tell him why I have a problem with this. Social workers and people who have been around this for the past ten years have seen fragments of this report. They know that it is hard-hitting. They know it is a good report, and that is how they have characterised it to me. Mr. Breslin does not know; they do. A lot of people who are working in this area know exactly what has been written in that report and are very keen that it be made public, and they are very clear about their opinions as to why it is being held back.
I take everything Mr. Breslin said at face value. He stated that the Department of Justice and Equality and the Garda have made it clear that there are still issues that need to be dealt with. I am beginning to get worried, though, that the HSE sits on such reports and then redacts them, and it is in the public interest for that to change. A second set of eyes needs to be brought into this to make a decision on whether it is good public policy to continue that system.
As for some of the issues, I have never dealt with anything like it. I have been in politics since 1999 and I have never dealt with anything as serious and as disturbing as these allegations. I think Mr. Breslin gets my drift. I note the Chairman has been involved in this and we are on the same page when it comes to this.
Jim Breslin: I think it might be of interest to Deputy Deasy - it does not directly answer the concern he raises - that one of the other concerns of the committee in these discussions has been the selection of people to undertake the work and how a report gets commissioned. The Minister of State, Deputy Kathleen Lynch, has written to the HSE suggesting that there are already processes in place in acute care to ensure that nominations of people to undertake reviews are not done by the HSE; they are done by an external party.
John Deasy: Unfortunately, the external parties in some cases are people who were former HSE employees.
Jim Breslin: This is the point I am coming to. Deputy Lynch has written to the HSE to say that the selection process around that could benefit from it being more independent. In particular, the HSE's attention has been drawn to a practice that has developed, and one that I am very aware of, in the child welfare area where an external party to the HSE, somebody of objective standing who stands apart from the HSE - a professor in a university, not an employee of the HSE - selects from a panel of people who might undertake the review.
There is the occasion where members of that panel have worked in the HSE because that is by far the biggest provider of health services but a studied eye is given to the composition of the panel, to ensure that it has clear independent status to it. We think this is an area, and the HSE is working with us and the Department of Children and Youth Affairs to try to develop a methodology that in the future would not lead to the kind of the concerns that members at the committee here have expressed, and we will have that.
John Deasy: Mr. Breslin is making me feel a bit better now. We have been dealing with this for the past year. We have been dealing with the methodology, the panels and the independence of these reports and reviews.
That is news. That is something we have not heard previously. We put a lot of work into this with regard to the independence of these reviews. Mr. Breslin states that the Minister in question, the Minister of State, Deputy Kathleen Lynch, has written to the HSE stressing that the reports should be more independent. Is it a bit more concrete than that? Does she have a proposal that she sent to the HSE or is it merely a request?
Jim Breslin: She sent a proposal to them and the Department has followed up with a series of meetings with the HSE, who can see the merit in this because it does not do anybody any good, and the Department of Children and Youth Affairs. Indeed, she has met with people involved in the panel in the children area to try to get the methodologies right as we implement something similar in this space.
John Deasy: The families involved in the foster home and those who have been in contact with us will take something from that. If the system is changed because of this issue, the raising of it and our continual contact with the HSE and the Minister in question, that is useful.
I am glad I asked Mr. Breslin the question and thank him for the response. I would like it if the clerk to the committee, without saying anything, could correspond or communicate with Mr. Breslin's office so that we could get a copy of those proposals so that we can take a look at them. We made some definite recommendations in this area but if Mr. Breslin can give us that information, we would like to take a look at that.
Jim Breslin: No problem. In my correspondence with the clerk to the committee, I undertook to keep the committee informed on progress on the work of the senior counsel, and I will do that. I will not wait for a request from the committee on that. I will do that as we get developments.
John Deasy: I thank Mr. Breslin.
Chairman: We can welcome what might happen in the future on the lines of what Mr. Breslin described, some of which comes out of recommendations made by this committee. I am happy with that.
What I am deeply concerned about is the fact that the health boards, dating back to their time, and therefore the Department of Health, failed a high number of vulnerable young adults in this State, and probably continues to do that in this case. Within the organisation of the health services, someone knows what happened in relation to this. It did not go unnoticed. A senior social worker and an independent organisation felt strongly enough about it to make a protected disclosure on a number of different occasions, and felt so strong about it that they raised it at a restricted public meeting of employees with the HSE.
It also was raised here. Deputy Deasy and I raised it, and I made a disclosure to Pearse St. Garda station. This is what annoys me about it. Some employees of the health board at that time must have known about this and that was said by the whistleblower in greater detail. I have not heard from the HSE or from the Department of Health to say they have identified the various persons who engaged with this issue at that time.
I want to put this on record because of what Mr. Breslin said. I was asked to attend a meeting in the Garda station some months ago where I was told that the evidence had been presented to the DDP and that no action would be taken. Mr. Breslin states that he is waiting on the Garda report or the Garda is dealing with it, and I have been told that the Garda has dealt with it. They either have or they have not dealt with it. In my opinion, someone is covering up or playing games, and we need to come clean on all of this issue, not only in the interest of accountability, transparency and all of those words that are used nowadays, but in the interest of the families concerned.
Some of those young adults may have continued through their lives being affected by what happened. I have read some of the reports and, quite frankly, in my time in the public arena I have never read anything so horrifying. Both the reports and the verbal explanations given to me by the social workers are horrifying. That is what disturbed me most about this. We had an exchange here with the HSE on this matter and I must say that its arrogance and stonewalling on the occasion in question was breathtaking. A bit of truth and a bit of effort would really change things around here and would also the circumstances of the people affected. In light of what I have been told and in view of the fact that the Department of Health, at some stage in its history, employed people who were directly responsible in this area, there is an onus on the Department to conduct some sort of investigation into both itself and the individuals concerned. It should not be held back by the report or the information to the effect that there is a Garda report. The witness can say that I told him there were no prosecutions to happen. That is what I was told. I will leave it at that but I could not leave it at the exchange with Deputy Deasy because so much has happened since.
Jim Breslin: I am happy to do this. I do not want this to be an ongoing issue. The purpose of commissioning the senior counsel is to get us to a point where we can put whatever we can into the public domain. One of the key issues the senior counsel is to examine is whether this concept of not publishing the report is well grounded. That finding will answer at least part of the question that the Chairman has posed. Officials at the Department and Ministers have met some of the people who have concern and local knowledge of this issue and everybody's concern is shared here. This is not something where we lack concern on this issue.
Chairman: Did Mr. Breslin meet the officials within the health system who, at that time, were to the fore of the care of vulnerable young adults?
Jim Breslin: In this instance?
Jim Breslin: We have met certain people who have made themselves available to us. The process of commissioning the senior counsel is to look at the two reviews that were conducted to see whether they were adequate in who they met and how they went about their job but we have not met everybody who was working on this.
Chairman: Given Mr. Breslin's exchange here this morning and how upfront he has been on some of the questions that we have asked, which is a little bit different than what we usually get here, I think he should ask them. I think he should seek the names of the individuals who were at the forefront of this at that time and determine whether they have all been questioned or made a contribution to the investigation. Quite frankly, it does Mr. Breslin, the committee, and the Garda no good to say that such a serious issue has not been brought to a conclusion one way or the other...
John Deasy: Can we stay on this point for one second? I want to reiterate one thing. Mr. Breslin has made it clear that the process involving the choosing of the individuals who do these reports will now change which will end potential conflicts of interest that have arisen in the past. Very clearly, that is what we have seen and that is good and the people involved in this will be pleased with that.
I have to return to the reports that are commissioned using public money and the way they are treated once they are completed. I think Mr. Breslin's office, on the basis of good public policy, needs to take a look at redaction and the circulation of those reports and, in my opinion, the continual suppression of these reports within the HSE. I could make a good argument that, for the public good, that system can no longer continue. I think Mr. Breslin needs to provide a second set of eyes or a different system or proposal to the HSE. I think, as a matter of good public policy, that needs to be considered at this point.
Jim Breslin: I will say two things on that. I speak with some knowledge of the children's area because that was my former posting. The approach that is taken there is that the reports are published. The important thing in the terms of reference when something is set up is that the person who is doing the inquiry is told that the report will be published. If they go off and do the report and then one decides whether to publish it or not, one gets into redaction terrain, so it is important that we set up a process that is for the publication of reports.
John Deasy: Okay.
Jim Breslin: We can look at taking on board the concerns that the Deputy has expressed on that in as many cases as we can.
John Deasy: Perhaps I am repeating myself but some people give out about the Committee of Public Accounts. On occasion, however, I think we can make a difference when it comes to public policy. I will take at face value what has been said about reports and changing that system. I am pleased that we are coming to a conclusion on a couple of these issues. Sometimes this place can be the cradle of parliamentary hyperbole. Words like "disgrace" and "outrage" flutter in the air like confetti. I think we can make a difference, and if we were able to do so in this area, I would be very pleased. The work we have put in has been worthwhile, so I will follow up on this.
PAC Meeting | June 11, 2015
Chairman [John McGuinness TD]: Item 3A.4 is correspondence, dated 5 June 2015, from Mr. Jim Breslin, Secretary General of the Department of Heath, regarding an investigation into abuse of people with disabilities in a foster home in the south east.
It is to be noted and published . . . There are HSE issues regarding the foster home that was being investigated. I express my absolute dismay that the gardaí who have come back to me directly have said that there may not be prosecutions owing to insufficient evidence and so on. I find it absolutely appalling and it needs to be discussed again by the committee.
In the course of the replies from the HSE there are issues about those who were employed to investigate and the committee needs to revisit the matter. The correspondence mentions that the HSE spends €40 million on legal fees and we need to investigate that.
Deputy John Deasy: The committee has dealt with the foster home issue. We need to remember that the Garda investigated all this in the early 1990s and no prosecutions resulted. The fear I and other committee members had was that it would be repeated.
For that reason there was an imperative on Government to take the review or investigation process very seriously. That was what the committee was asking the Government to do. I believe the Government is about to make a definitive decision not only on the course of action the Department will take, but also on the policy issues that arise from the contents of the report we will submit to it.
Perhaps we should hold off for a week or so. I always had the fear, which I expressed, as, I believe, did the Chairman, that it was going to be very difficult for the Garda because of the timeline involved and because most of the individuals who were affected were non-verbal. Some of the people involved have died since these issues arose. However, we need to wait a little longer because those decisions are being made right now.
Chairman: That is why I am saying we will revisit this batch of correspondence, which covers a considerable amount of ground.
"The public is listening to us and everything in the country has supposedly changed. However, while we have not concluded our banking inquiry into what happened seven or eight years ago... technically, what is worse in governance terms is that we are holding an inquiry into a bank that we owned."
PAC Meeting | May 14, 2015
Department of Finance called and examined
Mr. Derek Moran [Secretary General]: With me today are Ms Nolan, second Secretary General and head of the banking directorate; Mr. John McCarthy, chief economist; Mr. Declan Reid, shareholder management unit, and Ms Cep Carty, finance unit.
Deputy John Deasy: I welcome Mr. Moran and his officials. I understand he was only appointed in July 2014, but I wish to refer to some historical issues on which we need answers because this is the first opportunity Department of Finance officials have had to respond to parliamentarians directly on these issues - Siteserv, in particular - the timelines involved and the issues that have arisen.
Mr. Moran may delegate as necessary to provide responses to the questions. Although he may not have been the person involved in the meetings, we need clarity on the issues involved, notwithstanding the written responses we have received from the Department in recent days.
I will start by asking questions about the Siteserv shares. Media reports in the past couple of months have suggested there was a sudden spike in Siteserv share activity between November 2011 and February 2012.
I find it curious that it took a request from a Member of the Dáil to the Office of the Director of Corporate Enforcement to initiate a potential investigation into issues that might have arisen from the sudden spike in share activity.
When the Department read media reports on an organisation, of which it had oversight through IBRC, which was in effect sold by the State, what did it do? Did it make inquiries about the share prices and activity reported in late 2011 and early 2012?
Derek Moran: I have brought with me Ms Nolan and Mr. Reid who are more familiar with this issue. I would preface any comment by saying I am anxious to assist the committee on this issue and that we provided a comprehensive background document for the committee on Tuesday evening.
I am also conscious of the review of the transaction being carried out by the special liquidators, assisted by Mr. Justice O'Neill, which needs to take its course. Therefore, we will stay away from the transaction and its details and talk around the framework and the relationship.
On the alleged spike in share transactions, the monitoring of share transactions is a matter for the Stock Exchange which does not fall under the aegis of the Department. Where there is suspicion of anything happening along the lines the Deputy has described, the Stock Exchange is obliged to communicate with the Office of the Director of Corporate Enforcement.
Deputy John Deasy: Let me stop Mr. Moran. The public is listening to us and everything in the country has supposedly changed. However, while we have not concluded our banking inquiry into what happened seven or eight years ago, we are now finding that we are conducting another inquiry into a bank we own.
Somebody might ask the question: "What is worse governance wise?" Was what happened in the 2000s in banks we did not own and of which there was no oversight and regulation worse? The answer is that that was worse, given the devastation caused to our country and people. Technically, though, what is worse in governance terms is that we are holding an inquiry into a bank that we owned. That is how I will premise my comments.
If the Department of Finance technically does not have a remit over the investigation of alleged insider trading, I am not sure whether it is sufficient to assert that that was not the Department's job. The Department had oversight of IBRC. The State owned it.
When the media reported an alleged spike in share activity, did anyone in the Department contact the Stock Exchange, the Garda or the Office of the Director of Corporate Enforcement, ODCE? If the answer is "No", we have a problem. If someone robs my house, I go to the Garda and make a statement.
A Deputy has made a request of the Director of Corporate Enforcement. His office's answer was that it wondered whether it had a remit in this area. We have an issue with the process when it comes to the investigation of alleged insider trading. The answer to my question is that the Department did not contact anyone about an alleged spike in share activity. Is that the case?
Derek Moran: It is important to get the timelines right. My understanding is that the alleged spike happened several months before the transaction was executed or during the run-up to the transaction. The Department had no visibility of that transaction until after it had happened.
Deputy John Deasy: I know that. That is fine. I am talking about what has been reported on in recent months. Does Mr. Moran have any opinion at all about what has been reported?
Derek Moran: Opinion does not matter. We are talking about a spike in a transaction-----
Deputy John Deasy: Yes.
Derek Moran: -----that happened before the Department had any sight or knowledge of that transaction. This was an issue to be monitored by the Stock Exchange and reported to the ODCE if the former saw a problem. It is alleged. I do not know what the evidence is.
Deputy John Deasy: Does Mr. Moran know what? I am talking about the process. We have a problem. Compare this with the US Securities and Exchange Commission, SEC, which is a law enforcement commission, has an enforcement division and prosecutes civil cases before courts.
It is unclear what happens in Ireland where there is an allegation or report, but the SEC acts on media reports. If it reads something about the industry in The Wall Street Journal, it acts on it. The Director of Corporate Enforcement's response in a news article was that his office "did not receive any requests from any other regulatory authority asking us to commence an investigation" into Siteserv share trading.
This begs the question of what the office needs. Is it a papal bull from the Vatican? I do not know what initiates an investigation. If the Department of Finance has no interest, we have a serious problem.
The problem with the Stock Exchange is that it is owned by stockbroking firms. Someone might ask whether it is in the public's interest for them to have responsibility and remit for initiating an investigation. Is this a fair analysis or point to make?
It is unbelievable that, if something like this is reported in the press, the Department of Finance does not have an opinion or will not ask even basic questions of the bodies and agencies that have a remit for alleged insider trading. Is this not even remotely reasonable?
"This begs the question of what the office of Corporate Enforcement needs. Is it a papal bull from the Vatican?"
Derek Moran: The regulation of the market is a matter for the Stock Exchange and, where there are irregularities, to report to the ODCE.
These do not fall within the remit of the Department. I just want to be clear on that. The alleged spike happened before the Department had any visibility on the Siteserv transaction.
The response to the suggestion that there were irregularities was to make available the share register. To date, this is still an allegation of which I am unsure there is any evidence. Do my colleagues wish to speak?
Declan Reid: We are not aware of any evidence that has been brought forward other than what we have read in the press. The share register has been made available by the liquidator of Siteserv for scrutiny.
Deputy John Deasy: Mr. Reid is the person in the Department who would deal with this matter.
Declan Reid: Now, but not at the time of the transaction.
Deputy John Deasy: Has Mr. Reid or any of his predecessors contacted the Stock Exchange or the ODCE regarding this issue-----
Declan Reid: No.
Deputy John Deasy: -----to find out whether they are looking into it? I am not asking whether Mr. Reid has evidence. I am asking whether anyone in the Department of Finance, which had oversight of transactions involving IBRC, picked up the telephone and called these organisations?
Declan Reid: We have not contacted them directly to see whether they have conducted an investigation, but they have come out in response to parliamentary questions of which we are aware and stated their positions.
Deputy John Deasy: Does Mr. Reid not have any human curiosity about a matter over which he has responsibility on behalf of the public and into which he might make initial inquiries?
Before Ms Nolan speaks, I find it unbelievable that someone from the Department of Finance would not pick up the telephone if there were several reports about a spike in Siteserv's share activity, given what has been in the media in recent months.
The response from the ODCE was equally amazing. The office made contact with "a number of other regulatory authorities with a view to seeking to establish as to whether any issues arise that might come within remit". It did not even know what its remit was in this situation.
The Stock Exchange is responsible for monitoring any suspicious trading, but we are none the wiser as to whether it has conducted a preliminary inquiry or investigation. It passes its files to the ODCE, which then investigates any alleged breach in company law. Is it not always the case of something being someone else's job? This must change.
Given what the country has gone through in the past ten years, surely the Department of Finance would have some interest in finding out whether someone or some agency or body was examining what has been reported. This is reasonable, fair and simple. Does Ms Nolan wish to respond?
Ann Nolan: The reality is that we do not have any evidence that there was a spike, never mind evidence of wrongdoing, but I agree that it is for the Stock Exchange and the ODCE to investigate such matters.
Deputy John Deasy: Does any of the witnesses have an opinion on whether the procedures in terms of alleged insider trading are appropriate?
Ann Nolan: Insider trading is in no way appropriate. A number of changes to the procedures are upcoming. We are examining the market abuse directives. We expect there to be changes in the next 12 to 18 months in that regard to bring the entire matter under the Central Bank rather than the Stock Exchange, which would be more appropriate than the current arrangements. We are working on that front.
Deputy John Deasy: I will leave it at my next comment on this aspect. The public will be amazed that the Department of Finance did not make even the most basic of inquiries of the ODCE, the Stock Exchange or the Garda into whether the issue was being examined, investigated or inquired into.
It is amazing. The witnesses might say that they were not there at the time, that this was not their job or that, statutorily, this was not an issue for them, but the public will not buy that any longer.
What Deputy Catherine Murphy asked in the Dáil was reasonable. This committee should make inquiries, as the issue relates to taxpayers' money. The Department of Finance held the opinion that there was potential for an awful lot of taxpayers' money to be lost, so a review was commenced.
It was concerned about an asset being sold for a price that was too small. The very least the Committee of Public Accounts should do is to inquire whether the Office of the Director of Corporate Enforcement has looked at the matter and whether it is inquiring into it.
We should echo what the Deputy asked for in the Dáil Chamber, if the Department is not going to do anything, and take it from there. It is unbelievable that the Department might not be prepared to make inquiries over the telephone, so the committee will have to do so.
I wish to inquiry about Siteserv. As I said earlier, this is the first time the officials from the Department of Finance have had an opportunity to respond to questions regarding Siteserv. They have given written answers to some of the questions we asked and, in many respects, the replies are comprehensive.
I will start with the date of the review conducted by the Department, which was a meeting with senior IBRC officials held on 11 June 2012. What prompted the review by the Department? What concern prompted the Department to seek a meeting on Siteserv?
Derek Moran: As I said at the outset, the timeline is important. The Department did not have visibility on the Siteserv deal. Critical to this issue is when we first had an inkling that there might be an issue.
We got a representation from a member of the public expressing concerns, and then there was a series of one or two parliamentary questions which brought up issues of concern.
A routine monthly management meeting was held in April at which the question of alerting the Department was raised.
It was agreed with the chairman and CEO on 31 May that we would do so. It was in response to an e-mail from a member of the public, some press reporting and parliamentary questions. The review took place on 11 June, and Departmental officials and officials of the bank went through the various details on how the transaction was done.
The key element of concern was the first point that Siteserv led the sale and not IBRC - it was handed off to them - which gave rise to a range of other issues. It was those types of concern.
We listened to the response, and there were five issues, all of which flowed from the fact that the company was allowed to run the sales process: not opening the sale to trade buyers, entering into exclusivity with a single bidder, the payment, the quantum of the payment to shareholders, and certainly the suggestion of not accepting higher bids. That is what gave rise to it, and it was immediately afterwards.
We have looked at the records and we have searched thoroughly in the Department. There is no record of details of Siteserv being provided by the IBRC to the Department before April 2012.
Deputy John Deasy: The shareholding management unit has responsibility for the day-to-day relationship. Is that right?
Mr. Derek Moran: Yes.
Deputy John Deasy: So, by June or July 2012, when it expressed a concern that the State had not recovered as much as it possibly should have, was that not a bit late in the day? What was it doing previous to that, at the time Siteserv was being sold? Has the Department asked the unit about what was disclosed?
Derek Moran: Yes, I have.
Ann Nolan: Under the relationship framework that was before that, the fiduciary duty of the interests of the State was held by the independent board which had been appointed by the Government after the takeover or nationalisation of the IBRC. We did not get involved. In fact, the relationship framework was designed in such a way that we would not get involved in the ordinary day-to-day activities of the IBRC.
Deputy John Deasy: We now know that that design was extremely faulty, which led to a revised relationship framework. Is that fair to say?
Ann Nolan: I think-----
Deputy John Deasy: Is there an admittance or agreement that the unit was completely ill-equipped to deal with the relationship and communications from the IBRC and the Department of Finance, and that is why it resulted in a completely revised framework document?
Ann Nolan: That would probably not be quite the full story. I want to be fair to all the people involved. At the time the bank was taken over it was a going concern, and the ordinary course of business was, of course, ordinary banking business.
It was, I think, August to September 2010 when we put the bank into wind-down. The ordinary course of business, in extent, changed because, at that point, they were then winding down. This type of transaction was not captured. It became an ordinary course of business and probably should have been captured.
Deputy John Deasy: We are getting to the kernel of the issue, which is commercial freedom-----
Ann Nolan: Yes.
Deputy John Deasy: -----and the kind of oversight that the State provided when it came to something that was owned by the public. As I said to the witnesses earlier, it is ironic that before concluding a banking inquiry into something that happened historically, we have initiated another inquiry into a bank that we did own.
I asked a question about the framework that existed initially. I understand what Ms Nolan is saying, but a lot of people have reached the conclusion that, regardless of the issue of commercial freedom, the State and the Department of Finance did not act accordingly in terms of the oversight of IBRC, and had to change the framework document subsequently. That is really what happened.
Ann Nolan: We changed the framework document when the nature of the relationship changed because the nature of the organisation changed.
Derek Moran: I wish to emphasise that point. The 2009 relationship framework was based on a company that was supposed to return to being a bank. Its normal trade was to be banking. That changed in the latter half of 2010, with a business plan being agreed with the EU in January 2011, after which it went into wind-down.
There was a provision in the original relationship framework that any material acquisition, disposal, investment, realisation or transaction other than in the course of ordinary business would be a reserved function of the Department. When it went into wind-down, such disposals became part of the ordinary business, and fell out. That meant the relationship framework was no longer the right one.
Deputy John Deasy: Fair enough.
Derek Moran: They were not required to notify, and they did not.
Deputy John Deasy: The Department had an epiphany. I will read the note issued by the Department, which reads:
We are concerned at the number of large transactions that have been poorly executed under the direction of the current CEO.
The note refers to June or July 2012. What other transactions did the Department look at? What other large transactions was the Department concerned about in terms of the disposal of assets within IBRC? What else are we looking at here?
Ann Nolan: The list of transactions is in that same document. There is the Allsop transaction.
Deputy John Deasy: Right.
Ann Nolan: There was the engagement of Blackstone on an exceptional basis.
Deputy John Deasy: Is the Department looking at anything else?
Ann Nolan: No, I think that is an exhaustive list. Looking through all our other files we cannot find a reference to any other.
Deputy John Deasy: This reference to a number of large transactions-----
Ann Nolan: That is all we can find any record of. The individual who wrote that particular note is no longer with the Department and he has no recollection of any others.
Deputy John Deasy: Mr. Moran's predecessor, Mr. John Moran, met the CEO of IBRC. There are no minutes of that meeting. Will Mr. Moran give the committee an idea as to what was expressed on behalf of the Department?
Derek Moran: There are no minutes but there is a record of what happened at the meeting and it was largely a follow-up from the meeting with the Minister a fortnight earlier about improving the relationship and getting better oversight going forward, and that culminated in putting somebody from the Department into IBRC in a specific role.
There is a record, which has been released under FOI, from Michael Torpey recording John Moran's debriefing of that meeting, and that sets it out. Am I right in that?
Ann Nolan: Yes.
Derek Moran: The key was to follow up the items that were discussed with the Minister on 25 July. The main one was to action out the improvement of the oversight and the improvement of the relationships going forward.
Deputy John Deasy: When one looks at the Anglo Irish Bank Corporation Act 2009, it is pretty specific when it comes to the flow of information that should be going from the bank to the Minister and the Department.
It talks about any material acquisitions, disposals, investments, realisations or other transactions other than in the ordinary course of Anglo Irish Bank's banking business. In hindsight, was the Act followed?
Ann Nolan: It depends on what one considers as the ordinary course of business and there was a difference of opinion at different times between ourselves and the board of the bank as to what constituted-----
Deputy John Deasy: As far as the interpretation of the Act?
Ann Nolan: The interpretation of the Act.
Deputy John Deasy: And was that made clear at the time?
Ann Nolan: The Deputy can see the documents that we had at that time. One of the other issues that has to be taken into account is the relationship-----
Deputy John Deasy: The suspicion is that it was not made clear. We will get down to the nub of this now. The suspicion is that the Act was enacted and the details within the Act were not followed through on and there was not a sufficient level of communication or inquiry when it came to the Department and the bank.
There is some reasonable evidence to suggest that the details of the Act and the spirit of the Act were not followed through on. Ms Nolan has said that she went back through the files. When it came to full access to information, does Ms Nolan believe now that there was a serious problem? I think the answer is obviously, "Yes," because the whole framework was revised subsequently.
Ann Nolan: To go back to the framework, the reason the framework was written the way it was the first time was because that is what was insisted on by DG Comp, the competition authority in Europe.
We had no option but to allow commercial freedom to the bank and to limit our inquiries, and that was insisted on by DG Comp. One of the reasons the second relationship framework took a long time to negotiate was because DG Comp was reluctant to allow us to put in the kind of thresholds that would say certain documents would have to come to us.
Deputy John Deasy: Is that the reason the revised framework was not implemented until March 2012?
Ann Nolan: That is the reason.
Deputy John Deasy: Is that the only reason?
Ann Nolan: In 2010 there were a lot of other things going on in the Department and the bank was reluctant to change it, but the main reason was that in March 2011 there was the recapitalisation of the other banks, the PCAR, and the burning of the bondholders during June and July, and there was a set of things agreed under the programme.
The question of the revised relationship frameworks came up in August when we had the other major bits done and they were discussed then between August 2011 and March 2012 and that is when they were put in place.
Derek Moran: It is very easy to forget that this was an exceptional period. We were going into a programme and a general election. All conditionality that went with that programme had to be implemented as a priority for the release of funds.
In addition, the State was locked out of the markets. As Ms Nolan has said, the rewriting of the relationship framework became a condition of the programme after the third review. It was originally to be delivered by the end of December 2011 and it was not delivered until the end of the first quarter.
There was slippage on that. That was a relationship framework negotiated between us, the bank, the three members of the troika, and DG Comp. It was not simple. It was multi-party. To paraphrase what Ms Nolan has said, I think DG Comp wanted us to be even further away and more hands-off in our relationship with the banks rather than closer.
Deputy John Deasy: At a certain point the Department made a determination that Anglo Irish Bank was not forthcoming enough with regard to its decisions and transactions. Mr. Moran has said that the Department then decided to put an official in on the board to keep an eye on things. The board did not like it.
It begs the question whether it should have occurred much earlier. That is the issue. Therefore, we go back to Siteserv and other transactions, and we now have a public inquiry into whether the public achieved what it should have achieved through the sale of that.
The public did not expect the Department to fall down so badly so quickly after what occurred. The requisite scrutiny was not there. The Department changed it, effectively, at a certain point, but I do not believe that it was there. I think the Department fell down.
"The requisite scrutiny was not there... I think the Department fell down."
Ann Nolan: I would absolutely not agree with Deputy Deasy. The independence of the banks was an absolute prerequisite of DG Comp. It remains the issue that the responsibility for the running of the banks is a matter for the boards of the banks and we appointed a board chaired by Alan Dukes, a former Minister for Finance, a very capable man.
I have no evidence, to this day, that any of the transactions were wrong, but I accept that there are many questions about Siteserv. We had questions ourselves about Siteserv. We do not know the outcome of the inquiry. We have set up an inquiry to look not only at that but all of the other deals that that board did.
Deputy John Deasy: Ms Nolan's word choice is interesting - she has no evidence that any transactions were wrong. The Department of Finance would have a very clear opinion with regard to the amounts of money that were recovered from the sale of Siteserv, and the opinion of the Department of Finance was that it was not enough and that the State did not achieve what it should have.
That was, in effect, the opinion within the Department of Finance and that is why things changed. So when Ms Nolan says that there is no evidence of anything that went wrong, there is a clear opinion that came from the Department of Finance that things were not as they should have been.
Ann Nolan: No, I think the opinion within the Department of Finance at the time, and as reflected in those documents, was that there were aspects of that transaction that it was not happy with. There were aspects of it where we felt it was possible that a different set of actions could have brought a better solution.
The board told us and assured us and the Minster that that was not the case, that this was the best possible transaction. We have now asked the special liquidators under Mr. Justice O'Neill to inquire into that and look at all of the facts and establish whether or not they agree with the board.
Certainly, there were aspects of that transaction we were unhappy with. There is a big difference between that and suggesting that everything that that board did was wrong-----
Deputy John Deasy: I am not suggesting everything the board did was wrong.
Ann Nolan: -----or that there was huge-----
Deputy John Deasy: That is very unfair. Did I say-----
Ms Ann Nolan: Deputy Deasy said that the entire position-----
Deputy John Deasy: Did I suggest that everything that the board did was wrong?
Ann Nolan: No, what the Deputy suggested was that everything that happened between the-----
Deputy John Deasy: No. Do not put words in my mouth.
Ann Nolan: I am sorry. I withdraw that completely. I apologise to the Deputy. I was not trying to challenge him in that way.
Deputy John Deasy: KPMG and former Justice O'Neill are looking into all transactions that took place over €10 million. We are aware of that. What we are delving into here is how quickly a Department acts when it actually raises concerns itself.
The answer is - not very quickly. Regardless of the regulatory body dealing with this, there was an awful long time between the raising of the initial concerns and the establishment of the revised framework document.
Ann Nolan: I do not understand. The revised document was put in place in April 2012.
Deputy John Deasy: It was March.
Ann Nolan: Sorry, it was March 2012. That was before concerns were raised.
Deputy John Deasy: My point is that concerns were raised within the Department on the operation of the bank, which led to the revised framework document. Is that a fair point?
Ann Nolan: Yes.
Deputy John Deasy: I am saying that that took too long.
PAC Meeting | May 14, 2015
Chairman [John McGuinness TD]: We were dealing with correspondence from the HSE which is a follow-up from the 23 April 2015 meeting. There are a number of other outstanding matters that the executive has to deal with but this correspondence answers some of the questions raised.
In the context of the HSE reflecting on our meeting I suggest that we forward a transcript of that meeting to the Garda Commissioner in light of the issues raised separately, relating to the home... and other matters. We are told the Garda is investigating. It is extremely lax on the part of the HSE and the Garda that this matter is not being dealt with in a more open way.
On one side there are approximately 30 young adults who have been affected by what happened there, but I get no sense from the HSE that there is an urgency about this or any desire to resolve it.
The position is likewise in respect of the investigation into the procurement process. That has not been rightly explained to us either. Perhaps the transcript may be of help to the Garda.
A protected disclosure was made, under legislation, on more than one occasion from more than one person, but nothing has happened since. The Garda Commissioner needs to understand that we have had our hearing, that protected disclosures have been made and that we would have expected a far greater urgency as a result of that meeting.
The care of these 30 or more individuals is a matter of concern to us. Given all the reports undertaken into incidents within the HSE one wonders whether the executive is fit for purpose at all. Perhaps the transcripts should also go to the Minister out of concern for the issues raised.
Deputy John Deasy: There is a good deal in this. As you have said, one of the issues the committee dealt with has to do with procurement and tendering. The Comptroller and Auditor General has carried out reports on the matter.
Across the board when it comes to the HSE it is clear that the executive is a bad actor, frankly, when it comes to tendering within public procurement guidelines. When it comes to the issue that you have just raised and what the committee has dealt with in recent weeks, the appropriateness of hiring former HSE employees to do reports for the HSE on issues as disturbing as those we have been dealing with is questionable.
When Mr. O'Brien was before the committee and questioned with regard to the process whereby the tender was awarded, he pointed to some regulations that needed to be followed. When he was questioned about whether they had been followed in that particular case and for the particular contract in question, it was clear that they had not because the procurement office said it had no communication with the HSE on the matter.
In hindsight the answer he gave was disingenuous. We have done a great deal of work when it comes to this issue as well as the tendering of contracts by the HSE and the potential conflicts of interest that arise when former employees of the HSE get these contracts.
We should put a formal proposal from the committee to the Minister to change this arrangement. Most of the work has already been done by the committee. It would be simple to do. The issues we have raised in the committee have not been raised in any other forum in the Oireachtas and therefore it is reasonable for us to do that.
. . . The Comptroller and Auditor General has done much work on procurement and HSE tendering. I will preface my comments by saying that one would wonder about value for money as far as the taxpayer is concerned when it comes to a contract being given to a former employee and individuals who were known within the organisation and who had been there for decades but it is far beyond that, frankly. The conflicts of interest that arise in these issues are incredibly disturbing and far supersede that consideration.
The premise is in place. You have done a great deal of work in this area, Chairman, as has the Comptroller and Auditor General. Perhaps you could feed into any report that the committee might do. That would be useful. Rather than simply point out the position, we should come up with a solution.
I think we should come up with a clear determination, as a committee, about what should not happen when it comes to the issuing of a contract by the HSE. This should include an absolute bar on individuals who are former employees of the HSE getting these contracts. I believe that step will need to be considered by the Minister and we should make that recommendation and consideration.
Mr. Seamus McCarthy [C&AG]: The only comment I would make in that regard is that there may be a problem in law in respect of making a restriction completely debaring people who have legitimately set up in business from tendering for work.
The complication in this case was that it was people, who had previously worked for or who had been previously engaged with the HSE, who were appointed without any competition.
Deputy John Deasy: If the Government is prepared to pass a law that prevents politicians or former politicians lobbying their former colleagues, I do not see a problem with the Government passing a law preventing former employees of the HSE getting contracts as it applies to cases like these. Anything can be achieved if enough thought and consideration is given to it. I understand Mr. McCarthy's point, but if the will is there and the potential conflicts are understood well enough by the Department, it can probably do that too.
Seamus McCarthy: I do not want to argue for or against the proposition the Deputy is making because it comes into a policy area. I am just saying there may be a restriction in terms of the contestability of the issue and excluding certain categories. However, it is a matter that can be looked into.
Chairman: We can bring forward a draft report that we will present to the Minister in a short format. We can then discuss it and members can decide on recommendations, such as the one Deputy Deasy is putting forward.
It is clear, in the context of all these reports, that there is a crisis in the management of the HSE. No political system or Minister could manage the HSE the way it is. It will appear before the Joint Committee on Health and Children this morning.
The stonewalling that goes on when one is trying to sort out a problem is just incredible. It is unacceptable and somebody will have to do something about it. My concern is that while we are discussing this and while we had our meeting with the HSE and are now going to bring forward this short report with recommendations, there are individuals out there who are suffering because of it and nobody seems to mind.
The system seems to be conditioned to a high level of acceptance of this stuff going on. It is not acceptable. That is what members are saying in the context of trying to achieve balance and a change. Somebody has to change the system in the interest of justice and fair play. It is all one side at the moment and no one seems to be paying a bit of notice to any of the public hearings that are going on.
That is not acceptable. We will have this short report as soon as possible. We will put it before the members and then we can decide what is necessary.