Business of Committee

We are joined by the Comptroller and Auditor General, Mr. Seamus McCarthy, who is a permanent witness at the committee. He is joined by Ms Niamh Donegan, senior auditor. Apologies have been received from Deputies Pat Deering and David Cullinane.

Are the minutes of 4 April 2019 agreed? Agreed. There are no matters arising.

We shall proceed to correspondence. There are three categories. Category A consists of the opening statements and documents in connection with today's meeting. No. 2095 A, from the Office of the Comptroller and Auditor General, contains a number of briefing documents for today's meeting. Is it agreed to note and publish it? Agreed.

No. 2100 A, from the Office of the Comptroller and Auditor General, is Ms Colette Drinan's opening statement for today's meeting. Is it agreed to note and publish it? Agreed.

No. 2096 A is the opening statement from Professor Chris Fitzpatrick, dated 9 April 2019, for today's meeting. Is it agreed to note it and publish it? Agreed.

Nos. 2097 A and 2098 A, from Central Statistics Office, comprise the briefing document and opening statement for today's meeting. Is it agreed to note and publish them? Agreed.

On correspondence category B, we held over No. 2073 B on the last day for discussion. We agreed to note it and publish it at that stage. It relates to Kildare and Wicklow Education and Training Board, KWETB. We have written directly to the Department. I propose that we wait to see its response and that of KWETB before taking any further action. We will consider the replies from both organisations when we get them.

I agree. I took the trouble to read it. We cannot get into the minutiae but it highlights the nature of governance and the gaps if what is in the letter is accurate, notwithstanding that representatives of the board were before us and the direction from the Department of Education and Skills. While we cannot get into the minutiae, the response of the Department will be very significant.

That is good. I saw an article in one of the Sunday newspapers about the 2018 financial statements. We will consider all those matters when they come before us in due course. The statements would not be audited by this stage.

The next item is No. 2083B, from Ms Jennifer Wiley, HEO, seafood policy and management division, Department of Agriculture, Food and the Marine, providing an explanation for the delay in laying before the Houses of the Oireachtas the 2017 annual reports for the Aquaculture Licences Appeals Board and the Marine Institute within the required three months, as per the circular 7/2015 of the Department of Public Expenditure and Reform. We will note and publish this.

No. 2086B, dated 3 April 2019, is from Mr. Robert Watt, Secretary General, Department of Public Expenditure and Reform. It provides information requested by the committee on the annual assessment from June 2018 submitted by the Department of Health; the review of Ireland's capital management system; clarification regarding the use of two-stage contracting processes; a note on the water supply project; and the business case for the N6 Galway city ring road, as requested by the committee. We will note and publish it. Do members have any comments to make on it?

I welcome the publication of the business case evaluation. I would like an opportunity to revert to it at some time in a general way in regard to how business cases are made. It is dated 17 November 2017.

I tried to get this before and I welcome that it is now on public record. Perhaps with the Chairman's indulgence I will come back to it some time, but not today.

Absolutely. We will be looking at capital projects and if it falls easily under that heading when we come to discuss capital projects, then we will do that.

We will also write back on this. Perhaps we were not specific enough. We asked for details on the comprehensive appraisal with regard to budgeted projects. In our letter we also asked for details on how the costs estimations could be improved. There was a long list of good intentions supplied in the document but they are all in the future. We want to see timescales. We will write back seeking specific timescales on the second question.

One issue we did not address in our letter to the Secretary General, which I would like be addressed at this stage, is the whole question of value for money, which was not mentioned anywhere in the document. Perhaps we did not specifically ask this but while it is fine to talk about cost appraisals, we need to know the assessment process as to whether a project meets the value for money criteria, which is a basic requirement for major projects. We want a detailed note of how that happened and how it is integrated into the approval process for any major projects.

We also had clarification on the use of the two-stage contracting process and any derogation from lump sum contracts or common standard contracts since 2011. There is a list of 12 or 13 items that got a derogation from the lump sum contracts or were two-stage contracting processes. This will be noted and published. If anyone wants to follow that up then please do so. We will come back to this topic as part of our overall look at capital projects. Is that agreed? Agreed.

No. 2087B from Mr. Maurice Quinn provides information requested by the committee regarding expenditure on ships for the Naval Service. This reply is on foot of correspondence from a member of the public who queried such expenditure in light of perceived issues regarding recruitment. The Secretary General provides information regarding recruitment in 2018 and so far this year. We will note and publish that response. There is a lot of interesting information included about ships being retired that are more than 35 years of age, and other information on the Naval Service being obliged to commission a number of new ships in light of other ships being decommissioned, including on the time it takes to deal with this. This letter will be noted and published. It will be of interest to some people.

No. 2091B is from Commissioner Mark O'Mahoney at the Tax Appeals Commission, responding to our request for further information regarding appeals that are closed. The committee had asked for details on those appeals. The commission points out that the request should be directed to the Revenue Commissioners. The committee will write to the Revenue Commissioners requesting the details on those cases that were before the Tax Appeals Commission that are either closed or have been withdrawn. A large amount of money is involved in many of the cases we highlighted. We are concerned about what was the final outcome for the taxpayer. We will ask the Revenue Commissioners to give the committee a note on that. It is up to Revenue to calculate that figure. The Tax Appeals Commission makes the overall decision but it is up to Revenue to do the sums afterwards. Am I right in this?

Mr. Seamus McCarthy

I believe that the cases that were closed were settlements between Revenue and the appellant, not determinations of the Tax Appeals Commission.

The cases were, effectively, withdrawn.

Mr. Seamus McCarthy

Exactly. There are some very substantial cases there.

We will write to the Revenue Commissioners. Obviously they will not identify any particular case but if large cases that were before the Tax Appeals Commission have since been closed then it saves work for the Tax Appeals Commission if it does not have to deal with them. That in its own right is good. In light of that we will ask the commission to give us an estimate of the value of the cases currently remaining. We were speaking of €1.6 billion figure at one stage with a potential tax payment €1.1 billion but if a lot of those cases have been disposed of, then some of them may already have been paid or in some cases due refunds. We will ask the commission to give us an up-to-date figure. We had asked for the ten most recent or current high-value cases before it but we will now ask for the total quantum of cases currently on its files. It would be interesting to see if there has been movement on that.

No. 2092, received from Ray Mitchell, assistant national director, Health Service Executive, dated 27 March, relates to the National Paediatric Hospital Development Board. The correspondence contains one very interesting item that people may be surprised to note. The committee will bring in the National Paediatric Hospital Development Board and a date has been set for this to be on the work programme, which we will come to in a moment. In light of the PricewaterhouseCoopers', PwC, report published this week on the cost escalation that will be a very important meeting, and we will also discuss that in due course.

The cover note to the document the committee has been given says the correspondence deals with the consideration of the delivery options for phase B of the new children's hospital. It includes a detailed document that details the options going forward by the HSE. This was probably dealt with in November of last year before the decision was made by the Government. The document lists the three options for completing phase B: instruct BAM, the main contractor; instruct a new main contractor; or instruct a management contractor. The document includes a detailed assessment of the objectives and risks on each of the options. This document was prepared last autumn and a paragraph on its third page struck me immediately. It states "The HSE, at the request of the Department of Health, has sought input from a range of advisors including PwC and Alan Moore (Director of Strategic Capital Development in Northern Ireland), who have met with members of the National Paediatric Hospital Development Board and the project delivery team, to inform their views on these questions." It is the first time I have spotted it but perhaps others have seen it before now. It appears to me that we have a situation where the Department of Health is telling us that PwC was one of its advisers last November or December in the decision on which option to choose. PwC was also appointed to do the cost escalation report, published in recent days at a cost of approximately €500,000 to the taxpayer.

The issue of conflict of interest in respect of PwC was raised extensively at the commencement of that process. They assured us that there was no conflict of interest with regard to BAM, the HSE or the board. At the time we asked how PwC could be invited to carry out that work without it going through a procurement process at that stage. They gave us a valid answer that it was already on the list of consultants that could be called on at any time based on a pre-tendering framework. That is fine but now we see that "The HSE, at the request of the Department of Health, has sought input from a range of advisors including PwC". These are the words of the HSE in relation to this decision. I want a detailed explanation, immediately and within 24 hours, from the Secretary General. This story will have to be resolved within 24 hours. People, including journalists, will be asking how is it that PwC was involved in the decision process looking at how the project would go forward into phase B, and yet was also commissioned to carry out the costs escalation report that was published yesterday. I do not know how this has arisen. I am going on the HSE document.

This is a separate issue from the Mazars report that was prepared for the National Paediatric Hospital Development Board on preliminary observations in relation to the construction capital cost escalation of the national children's hospital, issued on 17 December 2018. PwC was involved in the process in or around November 2018. A Mazars report on cost escalation was issued in December. The HSE then commissioned PwC to do another cost escalation report early this year, at another cost to the taxpayer. This was all in the process of how the National Paediatric Hospital Development Board arrived at its internal report, dated 28 November 2018, entitled Process to Guaranteed Maximum Price: Working Together for our Children. We need clarification of the statement by the HSE that PwC were involved.

I am glad the Chairman raised it. I did not read the report. I just glanced at it today and saw that. I had it marked. I brought in the report with me. It is not up for discussion today but I am glad the Chairman raised it because it ties in with the conclusions made. It seems to me that PwC was never asked to make conclusions. It was given terms of reference to look at governance and other matters, on which it made recommendations.

On page 8 the word "conclusion" jumps off the page. I wonder about it as I do not see it relating to the terms of reference. What is particularly interesting is that at the bottom they say, "At this point, taking any alternative course of action other than continuing would in all likelihood result in significant delay". They conclude that one should not go a different route, but that had been decided in the document to which the Chairman referred with input from them at that point. That is a serious issue. I agree with the Chairman. I do not know if that conclusion should be there in the first place but it is a very different forum or may be the next time we discuss it. Certainly, they are reinforcing what they had apparently said when they gave advice, subject to reading the report.

We will ask for clarification of that. Our concern here is that PwC was, on a prima facie case, apparently involved in the decision-making process and was then the body called in to examine the cost escalation arising in part from that decision-making process. I do not understand it and the public does not understand it. We need immediate clarification of that matter today.

It is the standard approach. We set out to do reviews to arrive at a prescribed outcome. That is why PwC, with the best of respect to its standing in the world as a great accountancy firm, had no place doing this review. Of their own accord, they have decided to stick in at the end a conclusion that says, "By the way, we were right all along". That underpins the waste of €400,000 or €500,000 in the first instance and affects the entire credibility of the rest of the report.

It also affects the credibility of the people who commissioned PwC to do the report if the same people were aware that it was involved in the earlier decision. I use the word "if". It is not just PwC, it is the entire management of this project in the HSE.

No doubt, there will be another review and the old set piece, systemic and cultural failure will be-----

I am asking someone in the secretariat to contact the HSE via our usual point of contact to say we want a reply emailed to the committee by lunchtime and before the conclusion of our business today. I want that message to go to the HSE point of contact on the role of PwC and clarification of the matters I have just raised. Why was PwC commissioned to carry out the cost review process? I am making it very clear to help the secretariat to pass on a clear request. In view of the fact that the document-----

PwC was one of a number of advisers. It would be interesting to know who were the other advisers.

They mention Alan Moore, director of strategic capital development at Western Trust in Northern Ireland, who met members of the paediatric hospital board.

It says "including PwC and Alan Moore". "Including" means-----

We will ask also for a list of other advisers who were part of the document, "The New Children's Hospital Programme: Options for Going Forward". We want an emailed answer to that before the meeting is concluded today. The HSE knows the answer and can reply within an hour. There will be phone calls from lots of people seeking that answer and we want it in writing here today. We will check progress on that at the break shortly to ensure the HSE gets us a reply immediately.

We move on to correspondence in category C. No. 1875, dated 22 January 2019, was received from one of the witnesses who attended our meeting in private session on 22 January regarding the University of Limerick. We note it formally at this stage. It is agreed but it is not for publication.

No. 2088, dated 30 March, is from an individual on behalf of a residents' association in Tipperary requesting the committee to investigate the maladministration by Tipperary County Council on collecting financial contributions due under a grant of planning permission in 2000 and subsequent planning permissions. The matter is clearly not within the remit of the committee and the correspondence encloses a letter stating that a complaint has been made to the Ombudsman. I propose to advise the correspondent that he may also wish to bring the matter to the attention of the local government audit service. Is that agreed? Agreed.

No. 2089 is correspondence from Tadhg Daly, chief executive officer of Nursing Homes Ireland, dated 5 April, inquiring about a review of our system for setting nursing home prices under the nursing home support scheme. Mr. Daly states that the review was due in 2017 and that in its periodic report published last December, the committee recommended that the National Treatment Purchase Fund's review of its pricing mechanism should be concluded and published not later than the end of March 2019. I propose that we request an immediate update from the National Treatment Purchase Fund regarding the review. Is that agreed? Agreed.

Item No. 2090 is correspondence from Deputy Jonathan O'Brien dated 5 April on the PwC report which we have just mentioned. The document has been published and was circulated yesterday to all members. That concludes correspondence.

I note two matters. First, is the roster. I confirm I have looked at the correspondence and that is fine. The roster is in place in respect of election observers. I looked at the issue of the extension which is being sorted out.

That is good. The matter has come up here a few times here.

The second matter relates to whistleblowers. What do we do? What is the protocol? Perhaps the procedure is something we can come back to.

Is the Deputy referring to protected disclosures notified to the committee?

We issued a notice a while ago and I will ask for it to be recirculated and updated if necessary. It is something we have to be careful about. We are not the final arbiter of these matters but we will provide an updated briefing note on that exact topic and discuss it then.

We might come back to it.

We will and we will circulate that note in the meantime. The next item is a list of statements and accounts received since the last meeting. The first is from the Medical Bureau of Road Safety and a clear audit opinion is provided. What is its link with the Road Safety Authority?

Mr. Seamus McCarthy

The Chairman might recall the issue of breath testing. The Medical Bureau of Road Safety was the body which identified the discrepancy in the number of tests carried out. I am afraid I cannot provide a more detailed-----

Which Department is it under?

Mr. Seamus McCarthy

I need to check. I will come back to the Chairman in a moment.

The next item is the Residential Institutions Statutory Fund Board, Caranua, and its 2017 accounts. A clear audit opinion is provided but attention is drawn to the ongoing weakness in the board's control over grant payments. This has been mentioned here a number of times. The total value of the fund at the end of 2017 was €27 million. I do not know what the position at the end of 2018 was but we will note that.

Is there an update on Caranua? That is just what is before us at the moment.

Will we write to Caranua to ask for a current update?

I think so, in view of the various issues.

Mr. Seamus McCarthy

The turnover in 2017 was the amount Caranua disbursed in 2017. At that rate, it would have been down to approximately €10 million by the end of 2018.


Mr. Seamus McCarthy

I do not have any information that it is the figure but Caranua is getting through the fund quite quickly.

A small amount also remains to be collected by the fund. We will write to Caranua for an update on its current financial position.

No. 4.3 is the 2016 and 2017 accounts of the National College of Art and Design. There is a clear audit opinion but attention is drawn to the college's disclosure that it was not fully in compliance with the code of practice for the governance of State bodies and that action is being taken to address this. The college incurred a deficit for the year of €444,000 and had an accumulated deficit of €1 million at the end of 2017. We note that. Historically, the college has often been late with its accounts.

Mr. Seamus McCarthy

It is getting more timely with the financial statements. I have previously pointed out control weaknesses, most of which the college has addressed. It is addressing its non-compliance with the code of practice. A great deal of progress has been made in the organisation, but the fact is that it also has an accumulated deficit, which is a concern and something that must be watched. There is quite a bit of information on those two matters in the financial statements.

In the report. The next item is the Legal Aid Board. A clear audit opinion is provided and an issue of non-procurement is raised. We will deal with that as part of our periodic report.

The staff are compiling a list of all those as we go along.

The next item relates to Inland Fisheries Ireland, which has been given a clear audit opinion. That is the end of that.

Mr. Seamus McCarthy

Regarding the Medical Bureau of Road Safety, the Department of Transport, Tourism and Sport is the responsible Department.

The bureau handles breath tests. Is that its main task?

Mr. Seamus McCarthy

As far as I can recall, yes.

It is a significant task. The next item is the work programme. There is nothing significant in the work programme. We are trying to fill it. Next week, we will hear from the EPA. The following week is a non-sitting week. We have the list of other organisations to come in, including An Garda Síochána, the National Paediatric Hospital Development Board, the Courts Service, the Department of Finance and the Department of Children and Youth Affairs along with NTMA financial statements and HSE financial statements for 2018. It normally has its accounts for 2018 finalised by June or thereabouts so that will be an opportunity for the new chief executive, Paul Reid, to come in. Mr. Reid was not chief executive at the time but the HSE did not have a full-time chief executive for almost 12 months so it is important that we have a new person appointed. He will have a lot of catching up to do to be ready for that meeting. He appeared before this committee when he was in the Department of Public Expenditure and Reform so I am sure he will acquit himself well on the day. I congratulate him on his appointment and wish him well in a very important task. The next item is-----

Mr. Seamus McCarthy

There is a chapter from last year regarding the consultants' contract.

Which we are holding over. We are holding over one chapter from that report from the Comptroller and Auditor General. That is because we dealt with the HSE financial statements last summer before we had sight of the Comptroller and Auditor General's report so we will deal with that chapter now. We will also deal with the Houses of the Oireachtas Appropriation Accounts for 2018 some time before the summer recess. Regarding next week's meeting, can members indicate now or send an email by tomorrow regarding any particular information relating to the EPA accounts on which they would like further briefing so that it can be included in the briefing document? I expect to receive the normal briefing document but if there is anything specific that people want information on in advance, they can contact the secretariat if they so choose.

There is one particular matter, namely, the licence associated with Aughinish Alumina in Limerick. The EPA has responsibility for this and there has been an inquiry into it. The outworking of the matter was not very satisfactory. Obviously, it has been in the news in recent times because of the possible embargo on the owner but it is about looking about how that is handled, finance and the EPA's oversight of an entity of that nature. Does the EPA take a hands-off or hands-on approach?

The inquiry took place several years ago.

I support that and would ask for a detailed note. The EPA provided a note on Aughinish. There is a question of accountability in the context of whether there was an incident involving pollution or the clean up of the site. A note was provided but I would ask the EPA to expand on that because I am not sure that the information provided was sufficient. We regularly receive briefing notes in respect of landfill sites and places such as Avoca. There are significant implications for the public purse.

And Haulbowline.

We are looking at all of them retrospectively and are talking about millions of euro.

It would be the same with landfill sites. In my constituency, in excess of €20 million was spent when an unauthorised landfill caught fire. It is about the degree of oversight and also an element of retrospection in the context of where we should be anticipating problems.

This is an opportunity to ensure that everything is in order and that moneys do not have to be paid out of the public purse in respect of matters of this nature.

I received correspondence recently from an individual regarding an old inquiry relating to Aughinish and health risks to local landowners. Perhaps it came up at this committee previously but I will pass the issue to the secretariat in order to ensure that it is addressed.

There are a number of issues, some of which are historical. It is up to the Chairman to decide what we do with that but that historical perspective - the background to that - should be provided. It also concerns governance and ensuring that enough money is set aside in the event of pollution. I have already said it. There are two aspects. There is the historic aspect about which we need to be informed and then there is the up-to-date position.

I will pass on the details of the old case to which I am referring. It is not the major business but we want to discover what lessons were learned.

The Chairman does not want it to be major business in five years' time. That is essentially the point.

That is it. That is our programme. Regarding two items at the very end of the list, Deputy MacSharry referred last week to incontinence wear in nursing homes, how he had met the HSE and how this matter had been dealt with. It is good to note that. We noted it last week so we can take it off the list. We included the Dormant Accounts Fund in an earlier periodic report not long ago so it is not back on our agenda. At least those two items do not need to be carried forward because they have both been dealt with. The next item is any other business.

I must talk about last week's meeting. I do not like to be in conflict with the Chairman, who is very fair and very good to us all. His is a difficult job at times. I got an opportunity last week to mention that I needed to raise this matter with the Chairman before the meeting. I put a series of questions on the record that were relevant to the Irish Prison Service. Off the record, I informed everybody present that I was about to do this. If people could understand, they would give me a bit of latitude. I knew we were dealing with the Vote that is primarily of concern to the Department of Justice and Equality but, as often happens, one uses the opportunity if one can to raise some other issues. It was the first opportunity we had with the Irish Prison Service being before the committee and the response that was given to it in writing on 7 February so I did what I did. I took legal advice on the framing of questions and explained to the witnesses in advance that while I appreciated that I might not have the relevant expertise or that the relevant line managers were not with us, it would be perfectly fine for those answers to be given in writing after the fact. We proceeded along those lines.

I must put on record a couple of things said by the Chairman. I do not like to be in conflict with him but as this happened in public session, I would like it to be clarified. The Chairman stated that they were questions and issues raised by me as one of 13 members of this committee and that it was not a request from the Committee of Public Accounts until such time as the committee agreed to put the questions. The Chairman later stated that it was not a request from the Committee of Public Accounts, that the committee had not yet decided what questions to put to the witness and that it was a request from one member and was not representative of the Committee of Public Accounts. Later still, the Chairman stated that the member was not speaking for the committee but was speaking for himself and that it would be up to the committee to decide whether it wanted to put those questions to the witness.

That obviously causes a problem. I am a member of the committee, as nominated by my party and formally selected by the Committee of Selection of Dáil Éireann. To the best of my knowledge, and I have taken legal advice, I broke no Standing Order last week and raised no issue regarding parliamentary privilege. To the best of my knowledge, the committee is the forum and the members ask the questions. If the committee collectively decides to make a recommendation, that is certainly a committee decision but I know of no Standing Order that requires the unanimous agreement of the other 12 members as to the providence, validity or content of the question of one member, so that is a problem.

Will the Chairman respond to that? As far as I am concerned, the Prison Service is included in the justice Vote. While I appreciate that the subject of the meeting was the core justice Vote, digression to other matters relevant to that Department or Vote is reasonable and probably happens at every meeting. In addition, it may be argued that at least some, if not all, the matters I raised last week could fall under the remit of the internal audit of the Department of Justice and Equality. In any event, it did not depart from the practice of the past. Would the Chairman like to retract the unilateral instruction to the witness to the effect that he did not have to answer any questions, and the implication that my questions had to be affirmed, approved or checked by the committee as a whole? I will reserve my right to petition the Committee on Procedure about the matter. While I do not wish to be in conflict with the Chairman, the statements are of a serious nature.

I accept that my style of questioning may irk many people, such as fellow Members, the media and witnesses at times, but that is a separate matter which can, as long as I follow the rules, be adjudicated by the people of Sligo-Leitrim in due course. Nevertheless, the content, questions and quotes I have read directly from the transcript of last week's meeting seemed to undermine severely my position as a member of the committee. Suggesting that I was effectively a lone soldier who had gone rogue and asked irrelevant, inappropriate questions that required the approval of the other 12 members of the committee went beyond what I believe would be reasonably permitted.

I wish to provide clarification on the serious issues for the benefit of the Deputy. During the meeting, I listened carefully to his contribution and there was nothing wrong whatsoever with his style. It was a cogently presented set of remarks and questions. We can agree everything that was asked related to the remit of the Prison Service.

As Chairman, I came to the view that some of the remarks that were made related to behaviour that may have involved criminality. I felt that it was my duty as the Chairman of a committee, and as an individual, that if remarks relating to potential criminality were highlighted to me, they should be referred to An Garda Síochána. I stated last week that the entire transcript, including the issues raised by the Deputy, needed to be investigated in respect of criminality, such as theft of State property and other items, within the Prison Service. I stated I would send the transcript to An Garda Síochána, which I did via the superintendent in Pearse Street, which is the division of An Garda Síochána in which Leinster House is based. I have carried out, therefore, what I indicated at the meeting that I would.

All committees are conducted through the Chairperson. All questions are put through the Chairperson, who, in turn, puts them to the witnesses. That is a well-established principle. To allow for free-flowing meetings, I regularly let people ask and answer questions directly but it is always understood that the questions are put through the Chairperson. Under Standing Orders, it is the duty of the Chairperson to chair the meeting and all questions are asked through him or her. When issues were raised by a member with me as Chairman, I made an early judgment that some of the issues involved criminal activity. I had a simple choice. I could have put the questions to the Accounting Officer, who would follow them up and revert in due course to the committee, or, if I considered the matters to be very serious, I could decide to put the questions directly to An Garda Síochána for its investigation. I chose the latter option. Due to the nature of what was said, I felt that it would be more appropriate if some of the remarks were forwarded to An Garda Síochána for its consideration and for any action it may or may not choose to take, rather than ignoring the potential criminality that was highlighted during the meeting and, as if nothing had happened, putting it to the witness as a routine question to be considered. As will have been seen at every meeting of the committee, members raise issues and ask questions and I invariably ask witnesses to respond directly to the committee in respect of the matter in order that the answer will be conveyed to the rest of the committee. I make the request on behalf of the committee. When I say it is a decision of the committee, I am making that decision, as Chairman, on behalf of the committee. It is not the case that the other members must vet anyone's questions.

To clarify the matter, I will read aloud a sentence that I read every morning at every meeting and that I will have to read three times later in the meeting because there are three witnesses. I state: "If witnesses are directed by the committee to cease giving evidence on a particular matter and continue to do so, they are entitled thereafter only to qualified privilege in respect of their evidence." That is the established process in the Oireachtas. If a witness is directed by a committee to cease giving evidence, he or she must do so. In practical terms, if the witness is requested to cease giving evidence, the request will be made by the Chairperson on behalf of the committee. Even though we state the committee can instruct a witness to cease giving evidence, the Chairperson, in fact, issues the instruction on behalf of the committee. When I stated at the previous meeting that it would be a matter for the committee to decide, I did not intend in any way to imply that members could veto other members' questions. As I make clear at every meeting, I, as Chairman, will make a ruling on behalf of the committee as to whether questions or answers are appropriate. I can give a warning accordingly, which is what I did at the previous meeting. In my role as Chairman, I indicated I was not willing to allow that question to be put through me to an Accounting Officer when, due to the seriousness of the matter, I would convey those questions to An Garda Síochána for consideration, which is what happened. Until I, on behalf of the committee, decide that the questions should be put to the Accounting Officer, they will not be. When I referred to the committee, it reflected the language used in the House. I refer back to the remarks that I will make three times later in the meeting. The instruction about the committee potentially asking someone to cease giving evidence means, in practice, that the Chairperson can issue such an instruction. That is how I interpreted it. I did not mean the individual members of the committee but rather that if I, as Chairman, wished to conduct a meeting in such a way and decided, on behalf of the committee, that those questions should not be put to the Accounting Officer, I would convey them to An Garda Síochána. That is the basis for my decision and I am fully satisfied with the correctness of my approach.

I am not satisfied, for a couple of reasons. There is no issue with sending the transcript to the Garda and, in fact, I support it. That has nothing to do with it. The issue of a witness being told to stop giving evidence for fear of having qualified privilege only is also a separate issue. On three occasions, however, the Chairman stated I was acting alone, not as a member of the committee, that the questions were not posed by the Committee of Public Accounts and that, therefore, the witness did not need to answer them. Is that correct?

I think the Chairman was wrong in that regard. He stated there may have been criminality, which is true, but the committee's line authority in this instance is the Accounting Officer of the Prison Service. That is the equivalent of a Secretary General in this matter.

The Chairman's actions have given abdication to the people who respond to us to look into matters. It may well be there are no issues of criminality. It was perfectly reasonable to put to the Accounting Officer if he or the Prison Service are aware of A, B, C, D, E, F and G and if not, can they carry out the necessary inquiries. That was what was on each of my questions, as this will show.

The other implication of what the Chairman is saying is that if it is case that it may end up with criminality being highlighted as a result of some of these questions, that means that in effect he is narrowing the scope of this committee. What happens if we want to ask questions under the Competition Act, the Criminal Justice Act, the Companies Act, the Health and Safety Act or the Tax Acts, all of which could have implications in criminality?

What happened last week was perfectly within the Chairman’s remit. As I said, I hate to be in any sort of conflict with the Chair. However, my entitlement as a committee member to put questions to an Accounting Officer was effectively removed. It is there in writing three times last week. It is nothing personal, Chairman. We are best friends outside the ring. You are an excellent Chair. However, that totally disenfranchised my position last week.

The Chairman said the content was perfectly fine. He said the rules were not broken but then you decided that, although I am full member of the Committee of Public Accounts, the Secretary General and Accounting Officer relevant to this area would not answer these questions. Instead, we will kick it out to the Garda in the Phoenix Park. I agree it should carry out its investigations as well. However, to suggest the Department of Justice and Equality does not have a role is incredible.

If this were to stand as a precedent, we would not be allowed to ask questions in here. There is the potential for criminality in many of the issues discussed here and in many of the questions put. Again, I made no accusations against individuals, anybody identifiable or anything like that. Process, procedures, institutions and the need prudence demands for investigations to be carried out are fine. If the Chairman's answer stands and, more particularly, if the transcript for last week stands, I have no other option but to petition the Committee on Procedure to make a ruling on this.

I will conclude. That is in order. The committee will want to review the discussion here today. If I am wrong on this, the committee can tell me. However my view, like in my opening comment, is that when witnesses are here, all questions and answers are through the Chair. There is no vetting by any member of another member's questions. The Chair has authority to make a ruling that, to put a question to an Accounting Officer, it comes through the Chair or say to an Accounting Officer that he or she will not answer that question. I have had to say it to Accounting Officers on previous occasions that a question will not be answered on the day. I have instructed Accounting Officers on previous occasions not to answer a question that a member may have raised but that I felt, as Chairman, was not appropriate.

I made the decision on the day as Chairperson, chairing the meeting on behalf of the committee. It was not the committee that was not putting your questions. It was me, as Chairman of the committee, acting on behalf of the committee. I used the reference I read out earlier in relation to witnesses as a parallel. It was not a direct comparison. It is an example to show that when we refer to the committee, making a statement about some evidence, which, in practice, it is done by the Chair on behalf of the committee. It is not all members of the committee have to agree. In practice, it means the Chair has to do it. If the Oireachtas’s instruction to every committee is that the Chair has no authority to do that unless the full committee makes a decision, that is fine. If that changes the rules for every Chair of every committee, that is fine. I will follow that rule.

In the meantime, the questions, as always, are put through the Chair. I took my decision as Chair not to allow those questions be put through me to the Accounting Officer. I made the decision and wanted those questions to be sent to the Garda Síochána, which is what I did. That is my position. We have both indicated our positions on it. I have no problem with some higher committee in this establishment ruling on these matters. It will not be a matter specific to the Committee of Public Accounts. It will be a matter relating to the role of all chairmen of all Oireachtas committees. If clarification is required, I welcome that. Whatever the outcome of that process is, every other committee Chair and I will take note of that decision.

To conclude, I must express regret. It totally undermines my position as a committee member. I am sorry that is the case. I will take advice as to what I will do next. I hate the idea of having any conflict with the Chair but I think he is wrong on this and I have outlined why.

It was not anything in relation to yourself. There have been previous occasions where I have instructed Accounting Officers not to answer a question which I felt was not within the committee’s remit.

Of course, but what if they were valid?

There is no precedent.

The Chairman is attesting to the validity of the questions by giving them to the Garda and choosing not to give them to the Accounting Officer.

Yes, I made that decision.

That makes a mockery of what we do in here. Anytime there is any act that potentially is a criminal breach which may be discussed or touched upon here, the Chair is going to have to make the same ruling. That is not fair to members.

The transcript from last week is very specific. It is saying that MacSharry is out there on his own, he is not representative of the committee, he is not this, he is not that and he is not the other. The Chairman is wrong on that. I am on the committee and entitled to ask questions.

The Deputy raised an important point. There were so many issues in his document that could have been put specifically to the Accounting Officer for response in writing in due course because it was not the subject. However, because he included in the series of question the term “which may involve criminal activity”, it was not my job at the meeting to dissect his statement and refer this sentence to the Garda and this to the Accounting Officer. I had a decision to make. The Deputy's entire statement, lots of which would be normally appropriate-----

Was there legal advice on this?

There was none. It was my own decision as Chair on the day.

Was there any advice from the clerk to the committee or others?

I received advice from the secretariat on two occasions.

Was this during the meeting?

It was during the meeting.

Can the Chairman share the advice?

They were supporting the view I had arrived at and stated myself. They supported the view that I had arrived at as Chairman.

This was after I was thrown under the bus.

The Deputy was not thrown under a bus.

In fairness-----

No, it was off my head.

I will not just come to meetings to make up the numbers. Most people know that much research goes into my questions, as is the case with other members. I am a pretty good attender.

I am saying-----

To be told that after the fact is my point. If I felt the Garda was the appropriate forum to write to, I would have done that. I could then have saved us all three or four hours here last week.

I am on this committee. It is the appropriate place. The Accounting Officer was here. All of these matters were relevant to loss of money potentially to the State.

Did the advice come in writing from the secretariat?

Yes, both.

Can it be read out or provided to me?

I do not have to hand.

Can it be provided to me?

As this issue refers to staff of the Oireachtas, it will have to be discussed in private session. I have no issue with that.

Legal advice would not have to be dealt with that way.

It was not legal advice. It was advice from staff.

The staff are not necessarily identifiable. As these matters play out in the public domain, I am anxious that the advice be in the public domain.

I also asked last week that I would get in writing an account of what gave the-----

The Deputy did ask me that. I am giving it verbally and it will be in writing in the transcript.

What would have made matters much simpler last week is if the term, "issues which involved potential criminality", had not been part of your statement. Then the question could have been passed on for an answer in due course. However, because the Deputy's statement included that item, I had no option on the day but to forward his entire statement to the Garda. Does he understand the point I am making?

Well I think it is clear.

I do not. It has implications. What we are saying is that the Committee of Public Accounts can never again put questions that might lead to a criminal finding or outcome. That is absolutely ridiculous. I mentioned just a few Acts off the top of my head but one could mention any Act. If asking a question leads to a criminal finding, investigation or outcome, that is bananas.

Is it generally coming from the clerical side that we have to be scrutinised more?

I was informed that there were legal people available at yesterday's meeting. I do not want to get involved in the affairs of another committee but I was informed by an attendant that there were legal people watching everything that happened at yesterday's meeting. Are there new guidelines to restrict us asking questions regarding something that happened in the past?

As Chairman, I can categorically state that I have received no legal advice from anyone in this building on how to conduct this meeting.

Deputy Aylward raises a very important point but it is totally separate to this one.

That is a matter for the Committee on Procedure of the Dáil to assess and to then notify committees on how to conduct their business. That has not happened. The matter has not been finalised in the Supreme Court, and I am not going there. I stress that because some of the matters indicated removal of State assets of a criminal nature and it is clear that the people referred to by the Deputy were not identified or identifiable to us but based on what was said they might have been identifiable to people within the Prison Service who heard. The people the Deputy referred to in making the allegations could well have been identifiable within the Prison Service. Does the Deputy get my point?

I did not define anyone.

The Deputy gets my point. The people to whom he referred look at being identified.

I referred to no people.

No, the Deputy did not.

I asked whether the Prison Service or the Department would be aware. The Chairman should go through what was said. The questions were legally drafted because I knew this was a serious thing. Why am I doing this? Why are any of us doing this? We are doing this to try to improve a system that may need improvement.

I did not think up a bunch of vexatious issues outside the room. I came in and asked in the best possible way and without remotely identifying anyone or pointing any fingers to see if we could get some of these matters investigated. Instead, we said it was nothing to do with the Prison Service or Department of Justice and Equality and decided to send it to An Garda Síochána. That is a total abdication of responsibility and it creates a precedent that one can bring up nothing here.

No. We will conclude on this. I want to reiterate the point because it can be significant. I am clear that the Deputy identified nobody here and I am satisfied that the remarks he made here could not have led to anyone being identifiable. However, I am quite sure that it is reasonable to say that because of what he put on the record, those people could be identifiable within the Prison Service by other serving staff. They could well have known who the Deputy was talking about. It could impinge on their good name if they could be identified within the Prison Service based on the information put on the record here. I wanted to avoid that. That is why I sent it to An Garda Síochána.

That is not what the Chairman said.

That is what I am saying now. The conversation the Deputy and I are having now is a follow-up to the quick summary decision I had to make in the middle of the meeting. Having considered the matter, there are aspects-----

We are reaching, to be honest.

I have given the Deputy the full response.

We are reaching for a reason. We see these tactics continuously. It undermines the useful work of the committees. I hate feeling managed. That was my experience in some ways with at the banking inquiry, and this is more of the same. It is nothing personal but I have to escalate this to the Committee on Procedure because it has implications for all members and future members of this and perhaps other committees.

If the Committee on Procedure has a view on how meetings are chaired and wants to look at-----

It is not a criticism of the Chairman. This is not a personal thing.

I am broadening the issue, not being personal.

The Chairman states that he made a unilateral decision and is getting advice from elsewhere that happens to concur with his position. My legal advice is that there are implications for the work of these committees.

That is where the Deputy has an advantage over me. I have never received any legal advice from anyone on this matter. The Deputy got legal advice.

I checked in advance of the previous meeting. As matters stand, for the record, my work last week was futile because the relevant Accounting Officer was told not to answer any of my questions as it was up to the committee. The Chairman is stating that it was not up to the committee but, rather, that it was up to him as Chair. That is not what he said last week.

It is as Chair on behalf of the committee.

At minimum, the Chairman might correct the record of the transcription last week which implied three times that I was acting unilaterally and was in here of my own accord asking questions which were not relevant and were not allowed and that the other 12 members together would have to adjudicate on the thing. I have delayed the meeting enough. I have to go to the meeting of the Committee of Procedure. I thank the Chairman for the time.

To respond finally, when I said "the committee", I meant myself as Chairman on behalf of the committee. I clarify that it was never my intention that the other members had to vet individuals. As Chairman, however, I have often told Accounting Officers not to answer a particular question. I have said it before and may have to say it again. I made that decision on the day based on what I felt were very strong suggestions of criminal activity. As Chairman, I am not happy to chair any meeting anywhere in the country, even in my constituency, if allegations are suggested and I do nothing about it. My job was to report it to An Garda Síochána which is what I did. There, the matter rests. If there is a follow up from any committee, I will welcome clarification.

On a note of clarification on the matter Deputy Aylward raised, in case the perception is that a legal person there was running the committee, that was not the case. The Chairman wanted the support of the OPLA and that is an entirely different matter.

I did not make an issue of that. I was told there was a legal presence there.

I did not make any allegation.

I know that but since I was there, it is important to note that.

In the course of the meeting, I acted in my capacity as Chairman without reference to any legal advice from anyone. I have stated that I received some procedural advice from the secretariat, which is probably what it is paid to do, but I had already arrived at the same conclusion before I received that. I am closing the discussion on the topic.

It is good that the Chairman clarifies that he made the decision as Chair. It is an important clarification that a member is not subject to other members.


That is a good clarification. Second, we should come back to the Kerins judgment, which is being used inappropriately and wrongly by educated commentators and media outlets. We should come back to it as a committee publicly and discuss it.

What the Supreme Court set down-----

The High Court.

The Supreme Court will issue a judgment in due course but it has also commented. I am not here legally; I am here as a Deputy and member of the Committee of Public Accounts. The Kerins case has been misused. We are perfectly entitled to ask questions as long as we do not go beyond our remit. The Supreme Court was particularly careful in highlighting the distinction between the Dáil, the courts and so on. Chairs are coming under very difficult pressure which is not appropriate and in no way relates to the judgment. It is something we should come back to. Witnesses are free to come in and leave. The position was the same before and after the High Court and Supreme Court cases. They are free to come in and they are free to leave and we are free to ask questions. If witnesses choose not to respond, that tells us something. I will leave it at that but we should come back to it because I am tired of listening to the misinterpretation.

We will wait for the outcome at the Supreme Court, even though it was not the Committee of Public Accounts that was involved. The courts instructed that the case be taken against the Oireachtas rather than the individual committee. I stand open to correction.

We will wait for the final pronouncement.

When we get it, it will not just be a matter for the Committee of Public Accounts, it will be a matter for the entire Oireachtas. It has Oireachtas-wide implications, not just for this committee.

In the meantime, there are consequences that are wrong due to the misinterpretation of what is being said.

Is pressure coming on Chairmen or are they being scrutinised on procedures?

All I am saying, and I will conclude on this, is that, as Chairman of the Committee of Public Accounts, I have not been subjected to any pressure, I have not had verbal or written advice, hints or anything else.

Every decision I have made, I have made in my own capacity. After the last High Court ruling, there was a useful briefing meeting for the Working Group of Committee Chairmen. All of the Chairmen in attendance felt that it was a major issue that the questioning had not been in line with the written invitation to the witness. I made the point that committee members, including me, never see invitations to witnesses. In other words, it is not just the politicians but also Oireachtas procedures and terms of reference as to what can be asked that need improvement. This is a broad issue across the Houses and is not for us alone. It was accepted by every Chairman and Vice Chairman present that they never saw invitations, yet the outcome of the group's consideration was that the questions were not in line with the invitation issued by officialdom in this building, which had not been passed to the relevant committee.

We will have to see invitations in future.

There are lessons for many people.

A distinction that is not being made is that, be they Angela Kerins and Rehab, the FAI yesterday or anything else, these are section 38 and section 39 organisations. With Departments and State agencies, though, the situation is totally different. There has been a great deal of misinformation about this in the media. I agree with Deputy Connolly.

She is right. The Prison Service is within the remit of this committee.

We will take a break now. We have two sessions, which I want to complete before the weekly divisions. We will go for two and a half hours until 1 p.m. Will we give an hour and 15 minutes to each session? We will end each then. If anyone still has questions after the hour and 15 minutes, he or she can submit them in writing. We will start with the CSO.

For an hour and 15 minutes.

And there will then be an hour and 15 minutes for the Office of the Comptroller and Auditor General.

We will be returning in the afternoon.

We will not get it all done before lunch.

Who will be before us then?

Professor Chris Fitzpatrick, in connection with the national children's hospital. He is a former master of the Coombe and wants to address the committee. We will suspend to allow the witnesses to take their seats.

Sitting suspended at 10.25 a.m. and resumed at 10.30 a.m.