Inquiry into IBRC could be given High Court powers

A "tribunal of inquiry in all but name" could be established to investigate transactions carried out by the Irish Bank Resolution Corporation (IBRC).

Taoiseach Enda Kenny has circulated the heads of a Bill aimed at resolving the difficulties identified by Mr Justice Brian Cregan, the sole member of the commission of investigation into IBRC transactions.

These include the sale of Siteserv to businessman Denis O'Brien at a loss of €105 million to the taxpayer.

A letter from Mr Kenny sets out what he calls “a possible approach to a bespoke piece of legislation”. This includes a proposal that the commission be given the powers, privileges and rights of a High Court judge.

While this could help to overcome legal obstacles, it would have “consequent implications in terms of costs and timeframe”, a discussion document accompanying the letter states.

The letter, sent to Opposition leaders, also explores the possibility of the commission examining the Siteserv deal first, before turning to other transactions.

Once-off Act

While the commission would have powers similar to a tribunal of inquiry, the document says it would be somewhat distinct from a tribunal in terms of regular review and reporting to Government.

The proposed legislation would be a once-off Act that will only apply to the commission investigating IBRC and not other inquiries.

The commission of investigation was established by the Government in June 2015 to examine up to to 40 IBRC transactions that resulted in a loss of €10 million or more to taxpayers.

It was set up after claims were made in the Dáil about the Siteserv deal, and whether the best interests of the taxpayer had been served.

In his interim report, Mr Justice Cregan raised a number of issues that arose in the course of his action, including confidentiality and privilege. The judge said he could not continue until those issues were overcome and this legislation aims to resolve this.

Waive privilege

The heads of the Bill propose the special liquidators

Kieran Wallace

and

Eamonn Richardson

of KPMG be given the power to waive legal professional privilege and must co-operate with the commission.

The Minister for Finance would also be allowed to instruct liquidators to work with Mr Justice Cregan and to waive their legal professional privilege when required.

However, the document warns this could transfer “significant legal and financial risks on to the State and therefore the taxpayer”. It also warns this could be open to constitutional and legal challenge.

Mr Kenny acknowledged "certain risks" with the suggested course of action, and has asked Opposition leaders Fianna Fáil's Micheál Martin, Sinn Féin's Gerry Adams, Renua's Lucinda Creighton and Catherine Murphy of the Social Democrats to respond. However, he did not give a time frame.

Ms Murphy said the Taoiseach’s commitment to the process seemed doubtful. “This entire saga has been a series of setbacks and delays and this gives an indication of the priority that is being placed on this issue by the Government,” she said.

“The chief whip and the Taoiseach have given a false impression of some kind of consensual and meaningful consultation process that is far from reality.”