Thursday 8 December 2016

Taoiseach accused of 'stonewalling' opposition over IBRC Commission of Inquiry

Daniel McConnell and Niall O'Connor

Published 10/11/2015 | 15:59

Taoiseach Enda Kenny
Taoiseach Enda Kenny

Taoiseach Enda Kenny has been accused of “stonewalling” the Opposition over the IBRC Commission of Inquiry in the Dail today.

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Mr Kenny, at Leaders’ Questions today, said the Government will wait to receive an interim report from the Commission of Inquiry into IBRC’s sale of assets, including the sale of Siteserv to a Denis O’Brien company, resulting in a €119m loss to the taxpayer.

Mr Kenny confirmed to the Dail that the Cabinet this morning discussed a letter from Judge Brian Cregan, the chairman of the IBRC Commission, who said he can go any further due to issues of confidentiality and privilege over documents involved in the inquiry’s work.

Two determinations were made by Mr Cregan, one in relation to documents from KPMG the special liquidator of IBRC and secondly in relation to documents from the Department of Finance, Mr Kenny said. Judge Cregan has today published his determinations as to why he can no longer proceed on the Commission’s website.

Both determinations relate to the limitations and inadequacies of the legislation which the inquiry is working under, the Dail heard.

Mr Kenny said he and the Government is willing to accede to a request from Judge Cregan to defer a decision as what to do until the Commission presents an interim report to Government.

A decision on that was taken at Cabinet this morning.

Fianna Fail leader Micheal Martin said that when it comes to members of the elites in society, repeated roadblocks are found to interfere with due process.

“You were dragged kicking and screaming to this point and yet you are empty handed here today,” Mr Martin said in the Dail.

Mr Kenny said all documents from the department of finance were sent in un-redacted form but would have carried a warning around confidentiality.  Previously, judges have waived that confidentiality in the public interest.  But no Judge before has raised the issue of privilege, he said.

Mr Kenny was repeatedly asked as to why the Government only acted despite warnings being highlighted in the media for several months.

In response, the Taoiseach said he does not deal in speculation and that the rules of these Commissions of Inquiry preclude people from talking about them.

Sinn Fein President Gerry Adams accused the Taoiseach of "stone walling" the Opposition repeatedly on the issue of IBRC and Siteserv.

Mr Kenny was repeatedly asked as to why the Government only acted despite warnings being highlighted in the media for several months.

In response, the Taoiseach said he does not deal in speculation and that the rules of these Commissions of Inquiry preclude people from talking about them.

Social Democrat TD Catherine Murphy, who has led the charge on this issue, pressed Mr Kenny on the sale of Siteserv to Mr O’Brien.

She also said in the Dail that Kieran Wallace, the KPMG Special Liquidator of the IBRC, has claimed privilege over documents relating to his work.

Mr Kenny confirmed to the Dail that he received a letter from Judge Cregan last Friday but that the Department of Finance were contacted the night before.

The Taoiseach also said that the Attorney General, Maire Whelan, briefed the Cabinet this morning as well as given legal options to overcome the current difficulties.

In his determinations, seen by the Irish Independent, Judge Cregan said the Special Liquidators have asserted the duty of confidentiality over approximately two hundred thousand pages of documents.

The Commission has examined these documents and is of the view that the banker-customer duty of confidentiality does apply to  these documents.

Therefore, the Commission, reluctantly, is driven to the conclusion, that the duty of confidentiality applies to the documents and they may not be received into evidence by the Commission.

The Special Liquidators have claimed legal advice privilege over many of the documents which they have furnished to the Commission.

The Commission has reviewed these documents and it is satisfied  that the legal advice privilege does indeed apply to the documents and information in question.

The Commission is satisfied it cannot cause to be prepared a summary version of the documents which excludes the relevant information.

Therefore, under section 21(8) of the 2004 Act, none of these documents can be considered to be evidence received by the Commission, Judge Cregan has said.

Meanwhile, the former chairman of IBRC Alan Dukes has revealed that he doesn’t know the list of transactions being probed the Commission of Investigation into IBRC.

Mr Dukes said the current row over confidentiality and legal privilege means that he is not allowed to get the list of the deals which Judge Brian Cregan is studying.

While the sale of contracting firm Siteserv to Denis O’Brien’s Millington is known to be one of the transactions under scrutiny, Mr Dukes suggested he didn’t know the other 37 deals that come under the scope of the inquiry.

Mr Dukes said that he would be happy for the Siteserv case to be singled out from the others if it would expedite his opportunity to prove that he “acted in the best interest of the Irish people”.

However, he said the opportunity for the board who oversaw the nationalised bank to show they carried out a “proper, ethical job” when selling assets “seems to be receding into the distance”.

Speaking about the delay, he said: “It means that the ‘questions’ and innuendos that have been thrown about are still there.”

Mr Dukes revealed that he met with Judge Brian Cregan in August and made the point that for “fair process” to take place all documents student by the Commission of Investigation would need to be made available to him and the IBRC team.

He said that the judge was clear that this would be required for them “to participate fully in the process”.

Mr Dukes argued that the former board of IBRC could brought into the “bubble of confidentiality” since they were involved in the original deals.

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