How much have the terms of the commission of investigation budged since the first draft was published last Thursday?
On first reading not a whole lot, given the long list of demands for new lines of inquiry and a wider investigation made by Opposition groups.
It's clear Minister for Finance Michael Noonan would not consent to some of the more ambitious – but, in reality, unachievable – requests made. The most obvious of those was an October deadline for the Siteserv part of the enquiry.
With the best will in the world this was never achievable. Commissions of investigation are Speedy Gonzalez operations in comparison with tribunals of inquiry. Yet they are still quasi-judicial reviews, often chaired by a judge, and they take time.
A part of the deal of having strong powers of comparability and discovery is that the commission also has to observe the niceties and formalities of process and natural justice.
In a complex investigation such as this (involving large volumes of documentation, many witnesses and deep analysis) an October deadline – even for a module – was never feasible.
That was privately conceded by some Opposition people whose parties were making those October demands in public. Indeed, the commission will do well to have its work completed by year’s end.
Still, too, it is clear that Noonan did not engage with Micheál Martin, Mary Lou McDonald and
merely as an exercise in optics. There are a few significant changes to the terms that will have the effect of appeasing some of the Opposition concerns.
For one, the commission will no longer be solely about Irish Bank Resolution Corporation (IRBC) and how it handled the Siteserv deal. The language in the revised terms brings the Minister for Finance and his department into the frame for the first time.
It seems there is a fresh onus on IBRC to ascertain if its communication with the department was adequate and appropriate. The commission has the power to examine whether the Minister or his officials “took appropriate steps in respect of the informant provided to them”.
A specific request by Fianna Fáil to include the wealth- management unit of IBRC in the terms (there is a suggestion there may have been a conflict of interest) has also been accepted, and the language in relation to governance at IBRC has been tightened.
Above and beyond that, the other bigger requests have been rebuffed. There is no October deadline for any part of the enquiry. The minimum limit for a capital loss to IBRC remains at €10 million, which essentially means no concessions to the demand for lower figures of €5 million or even €1 million.
Noonan has pointed to a clause which gives the commission power to identify any other transaction that might give rise to public concern. That, he has argued, will capture lower amounts without having to go through an exhaustive and resource-sapping trawl.
There has been no budging either on the period under investigation. It begins in February 2009 and concludes in March 2013, when IBRC ceased existence and when the two special liquidators assumed control. Murphy and McDonald had put a lot of emphasis on examining events that have happened since then, so neither will be thrilled to see no change there.
At the same time, the two core (and fundamental) questions at issue have not changed. The first is the circumstances surrounding the sale of Siteserv for €46 million. It involved a write-down of €119million; the decision to allow Siteserv handle its own sale; the granting of a period of exclusivity to a company controlled by businessman Denis O’Brien; the refusal to explore in any depth a counter- offer from a rival company; and the decision to give a payout of €5 million to shareholders.
Interest rate allegations
The second major issue surrounds the allegations put on the record of the Dáil by Murphy, that O’Brien and other key customers enjoyed lower and preferential interest rates from IBRC. Ms Murphy said the interest rate was 1.25 per cent. The figures used by Murphy have been fiercely challenged by O’Brien and also by former IBRC chairman
and its former chief executive
. In the debate last night, Fianna Fáil’s Michael McGrath said it would be “extraordinary” if that was the case.
All of this will come out in the wash once the commission, which has a provisional budget of €4 million, begins its work. But some of those questions will not be easily answered and some will come down to judgment calls on the propriety of commercial decisions.
Politically, the searing temperature of this row now looks like it will begin to cool. The terms of reference will not be universally praised but will be enough.