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JOINT COMMITTEE ON TRANSPORT debate -
Wednesday, 16 Dec 2009

Review of Ports: Discussion with Department of Transport.

The next item on the agenda is a discussion with officials from the Department of Transport regarding matters relating to the committee's review of the ports. I wish to draw attention to the fact that while members of the committee have absolute privilege the same privilege does not apply to witnesses appearing before it. Members are reminded of the parliamentary practice to the effect that Members should not comment on, criticise or make charges against a person outside the House, or any official by name or in such a way as to make him or her identifiable. Members are reminded that civil servants while giving evidence to a committee may not question or express an opinion on the merits of any Government policy, or adduce or send to a committee any document in which a civil servant, a member of the Defence Forces or a member of the Garda Síochána questions or expresses an opinion on the merits of any Government policy or policy objectives.

I welcome Mr. John Fearon, assistant secretary, Mr. Fintan O'Brien, principal officer and Mr. Niall Curran, assistant principal officer. I shall shortly ask them to make a presentation, a copy of which I have and which I suppose is self-explanatory. One of the committee's objectives since the beginning of this Dáil——

On a point of order, does the Chairman intend making a statement to the committee about what appears to many members to be a criticism of his performance as Minister for the Communications, the Marine and Natural Resources regarding the "lost at sea" scheme?

I have just done so.

Is it possible to do it in public at this committee meeting?

I have just done so before the committee. I have no difficulty in doing it again if the Deputy wants me to do so.

I would be happy if the Chairman would do that.

Since this committee has become involved, one of the things we are anxious to do is to have an oversight role in regard to the State companies that come within the remit of the Department and in the remit of this company. Representatives of the port companies have appeared before the committee and we have had good discussions with them. However, we have sought information that it has not been possible to get. For instance — the witnesses can tell us if this is relevant to this committee — we have sought information on the financial structures, the kinds of payments made to executives, the kinds of costs involved, the kinds of consultancies awarded, the policy regarding the purchase and sale of land, etc. We have tended to get a response indicating that these are confidential commercial matters and therefore cannot be disclosed. While we appreciate that commercial confidentiality is sensitive, we are not satisfied that that cloak can be put around everything. For instance, when we sought information from the representatives of the Shannon Foynes Port Company who appeared before the committee last week, we simply got a blank sheet.

We would particularly like to hear from the witnesses how the oversight and scrutiny role is carried out by Department and indeed by this committee. If there are activities going on in any semi-State body — representatives of one such semi-State body will appear before the committee later today — what power does this committee or the Department have to know about them, examine them and be in a position to expose any activity that may not be acceptable? Rather than reading the entire report, perhaps the witnesses might give us a synopsis and then go into the issue of scrutiny and oversight which is key for the committee.

Regarding the Shannon Foynes Port Company, has the committee formally received the Deloitte report? It is very striking——

I am afraid we have already discussed this matter in private session.

I am asking in public session.

I cannot go back over issues.

I am asking in public session because journalists, who are rightly doing their jobs very well, are able to call us and tell us that they have read the Deloitte report.

We have not received——

Has the Deloitte report been made available to this committee?

Deputy O'Dowd already raised this subject.

This is a public committee. It is not private.

If Deputy Broughan cannot come in on time——

Keep it in public.

This is the people's business. It is the people's money.

This will be discussed. Deputy O'Dowd has already asked for it to be discussed.

We do not have the Deloitte report to hand, do we?

No, we do not have the Deloitte report.

How can we invigilate the officials when we do not have the Deloitte report?

We will now hear the officials and then Deputy O'Dowd will be first to ask his questions on the issues.

I will just make a comment on the Deloitte report. I understood that two weeks ago the representatives of the Shannon Foynes Port Company undertook to give us a copy of that report. In a helpful way I requested that we would either get it from the Department, which has it, or from the port company. I understand representatives of the port company are listed to return here on 13 January to discuss it. I accept and acknowledge that everybody has to——

The entire population——

I have a copy of it, but I did not get it through the——

As I do not want to hold up the meeting, I call Mr. Fearon.

The entire population of Limerick city and county has this report and this committee does not seem to be able to get a copy of it.

We are going to discuss that matter.

It is a ridiculous situation.

I call Mr. Fearon.

Mr. John Fearon

I note the point the Chairman made on the statement I forwarded to the committee. I thank the members of the committee for the opportunity to meet them today. The essential messages in the statement I submitted related to ports policy generally, which is a key issue for us. A clear ports policy statement has been published. However, given the passage of time it is now timely to review it. Much of what was recommended or considered in that policy has been introduced, most recently through the Harbours (Amendment) Act 2009, which introduced a number of elements in terms of boards and other elements relating to the port companies. The Act also underpinned the commercial ethos of the sector by providing greater flexibility in borrowing funds and also allowing investment outside their harbour limits. Our expectation is that we would review the ports policy in its entirety next year. We will start that process in 2010.

The other main issue at the moment relates to capacity. It is clearly critical that the country has capacity to trade. That issue has been kept under constant review within the Department and most recently in the NDP study that reviewed capacity issues. That will continue to be something we will review in the years ahead. The immediately presenting capacity restraints have been affected by the economic changes, but it is still an issue that needs to be considered. My written submission refers to estimated capital expenditure of €75 million across the ports in 2009. The most recent outturn suggests a figure in the order of €50 million.

Corporate governance is an issue of concern for the committee and the Department. The present economic conditions challenge greatly all sectors of the economy. The public sector commercial companies face particular challenges and are under closer scrutiny than ever before. Standards of corporate governance across the private and public sectors are being questioned. This makes it all the more important that public bodies show leadership by displaying best practice in corporate governance. Such best practice is outlined in the Code of Practice for the Governance of State Bodies and this has recently been updated to present a more coherent document. That answers the issues raised by the committee on the governance of the bodies.

Patterns of full compliance with the provisions of the code of practice have been inconsistent with regard to the port companies. In November of last year, the Minister for Transport, Deputy Dempsey, established new procedures for strengthening existing governance arrangements and improving communications and the relationships between the bodies and the Department. The arrangement was put on a clearer footing. An important element of the new procedures is the development of a more formal structure for corporate governance meetings, at both ministerial and official levels, with the port companies. The meetings that have taken place this year have been very useful and constructive with regard to corporate governance issues generally.

On harbours in general, there is ongoing rationalisation. We have made good progress on this over recent years. There are six harbours we will be considering during the course of 2010 with a view to progressing the projects.

Maritime transport issues concern a range of Departments. There are issues of common interest involving our Department and its equivalent in Northern Ireland. There is very good co-operation between Departments and with the Northern Ireland authorities on these issues.

The sector has made enormous strides since the corporatisation of the companies in 1996. The recent enactment of the Harbours (Amendment) Act will further enhance the commercial nature of the companies by recognising the centrality of the public interest, as represented by the shareholder.

Mr. Fearon mentioned improved and more formal structures in respect of corporate governance. Does the Department really know what is going on?

Mr. John Fearon

Allowing for the fact that the companies are commercial and that the Department would not always know what is happening in minute detail, the Department has good oversight in respect of what is happening and this is being improved constantly. The measures that have been put in place and which have taken effect during the course of this year have led to significant improvements. We have been very careful to ensure each company is compliant with the corporate governance guidelines. I, or a principal officer, have met each chief executive formally during the course of the year. There were also informal meetings. The Minister has met the chairman and chief executive of each company. There may be one company in respect of which it was not possible to have a meeting.

Deputy Timmy Dooley took the Chair.

I welcome the delegation. I have some very important questions to put to it on Foynes. I accept and acknowledge the work done through the Harbours (Amendment) Bill and the tremendous work done in ports throughout the country. It is very important to our economy that we get it right. What happened in Foynes is an example of what must never happen again. How should the Department address the very serious issues that arose?

One of the key findings of the Deloitte report on Foynes Port is that an employee of the board was in a position to decide on a tender for a boat which, according to the harbour master, was never needed. It appears never to have been used, except on one occasion. Tenders were allegedly sought for the boat but, because it was under the €50,000 limit, it was not put to public tender. The person in question appointed himself as the successful tenderer. He got the job of providing to the company a boat that was never used, which is very serious.

There are very clear findings suggesting there was no proper tendering or discussion. The report suggest an abuse regarding the tender price. There is at least a year unaccounted for in the contract for the boat, which raises very serious issues. Questions arise in regard to how the Department and the Minister dealt with them. The matter brings into disrepute the corporate governance initiatives. Companies that use the port would not want a harbour authority to become involved in such issues. Its integrity is in question.

Land was purchased at Foynes at a discount of €1.7 million. It was valued between €3.4 million and €3.7 million. The land, amounting to 16.6 acres, was essential to the future development of the port. It was sold to one company only, notwithstanding the fact that there is clear evidence that another company was interested in buying the site. At least two companies had an interest, yet the land was sold to one. The other company did not know about this and bought the land approximately 2.5 years later for over €12 million. The company that bought it for €2.3 million gained a very significant amount of money, which was lost to the other company and the taxpayer. What are the Department's views on this and what will it do about it?

Without wishing to be pejorative or to predict how Mr. Fearon will respond, I must state this is a very serious and significant matter. Deloitte has identified the issues that arise. Many people in Foynes believe there was significant corruption. It is important for this committee to get to the bottom of the issue. What is Mr. Fearon's response to what I have said?

Mr. John Fearon

I hope Deputy O'Dowd appreciates that I cannot respond to the specific suggestions he made about particular people. In the context of corporate governance and the need to ensure proper procedures are followed——

I ask Mr. Fearon to respond to the findings of the report on tendering and on how an individual awarded a tender to himself. The Department must have a specific answer on that because it has a copy of the report. While the company may be commercial, the Minister is a shareholder in his corporate capacity.

Mr. John Fearon

Indeed.

Therefore, I cannot accept that Mr. Fearon cannot respond to those issues.

Mr. John Fearon

I understand the Deputy's position. To respond to concerns that arose over corporate governance, we tightened up the processes. I accept the Deputy's point on the need to ensure confidence in the operations of our semi-State companies. Action has been taken to ensure that is the case in all of the agencies reporting to the Department of Transport.

I want to be clear. I am not talking about all of the agencies reporting to the Department. I am talking about the findings against the members of the Shannon Foynes harbour authority. Does the Department believe there is need for an inquiry into this to follow up on the Deloitte report? Has the Department already conducted an internal inquiry? This matter cannot be left on the shelf. Notwithstanding the corporate changes in the authority, they still cannot be let get away with this.

Mr. John Fearon

The responsibility in the first instance for ensuring that issues like this are addressed lies with the board of the company in question. When a commercial semi-State company is established, a board is put in place and it has a responsibility——

The board in this case did not discharge its responsibility.

Mr. John Fearon

In the case in question the Minister has changed the board and put a new one in place.

I accept that but what will happen to the people who ran their own cowboy outfit, for want of a better phrase, down in Shannon-Foynes? We cannot just let it go and allow people to do that.

Mr. John Fearon

The chairman has pointed out the issue concerning privilege that attaches to non-Members which presents its own difficulties for me.

I appreciate Mr. Fearon's point about privilege. What will the Department do in cases where there are clearly findings of wrongdoing against a harbour authority?

Mr. John Fearon

I believe the Minister has taken action in that case where he was not satisfied with corporate governance processes. He has appointed a new board and is looking to it to ensure the company develops.

Could Mr. Fearon say——

Deputy Broughan, please allow Mr. Fearon to finish.

Has the Department referred the Deloitte report to the Garda Bureau of Fraud Investigation?

Deputy Broughan, we must allow Mr. Fearon to complete his answer to the first question. I want to give an opportunity for Deputy O' Dowd's question to be answered.

Mr. John Fearon

In September 2006 the Shannon Foynes Port Company initiated an internal investigation into allegations made against members of its board. This led to several related legal disputes and the investigation was suspended on foot of these, as the committee is aware.

In October 2007, a confidential out-of-court settlement was reached between the parties. This process was very costly for the company.

In December 2006, the company also engaged Deloitte as internal auditors. It carried out a corporate governance review of specific transactions and processes. The company subsequently forwarded a copy of this report to the Department.

The report, as has already been stated, is confidential and not intended for publication. It contained several recommendations for improving corporate governance procedures in the company. The board has confirmed these have been implemented. The Minister has indicated that making the report public now would lead to possible further legal costs for the company.

The Minister has also received correspondence from third parties regarding alleged inappropriate corporate behaviour. These have been forwarded to the Garda Síochána and to the Office of the Director of Corporate Enforcement. In the Dáil last week, the Minister said if any party had evidence of an alleged breach of the law, they should bring such issues to the attention of the Garda Síochána.

The point is that the Deloitte report has actual findings, not allegations, against named people. It seems to me there are significant criminal issues involved. I accept a new board has been appointed but what happened was wrong. I am still not satisfied that it is being followed up on to get to the bottom of the issue. If the State has been defrauded, as some people allege, of €10 million, it cannot be just let lie there.

I think that ties into Deputy Broughan's question.

Last week the committee heard a positive report from the chief executive of Shannon Foynes of the future plans for this magnificent river estuary that encompasses north Kerry, Limerick and Clare.

However, I agree with Deputy O'Dowd about getting to the bottom of what seems to be serious corporate misbehaviour and, alleged, malfeasance. It is a matter for the Garda Bureau of Fraud Investigation. There was a media report that the bureau was investigating the matter out of Limerick Garda headquarters in Henry Street. Is there an ongoing Garda investigation into matters concerning the Deloitte report? It is a report everyone seems to know about except this committee which is charged by the Oireachtas and the people to invigilate aspects of public expenditure in ports. That is not acceptable and the committee wants action on it.

Has the report in question been passed to the Garda?

Mr. John Fearon

The Deloitte report has been passed to the Garda. I do not know whether there is an ongoing investigation. There may not be.

Has the Garda Síochána interviewed Mr. Fearon's section of the Department of Transport or the Minister? Is the report being taken seriously? Is there some action that will be taken in this regard?

Mr. John Fearon

The Garda has not spoken to us on the report.

Was the report passed to the Garda nationally, through the Garda Commissioner, or locally in Limerick? Not being derogatory to the local Garda, but there may be more experienced fraud experts in Dublin.

Has the Director of Corporate Enforcement been provided with a copy of the Deloitte report and made aware of its findings?

Mr. John Fearon

Yes. The Minister forwarded the report to the Garda and the Director of Corporate Enforcement. My understanding is that it went to the local Garda.

That is the point I want to make about the fraud squad.I am not casting any aspersions whatsoever on the Garda, especially in Limerick, but if there are experts nationally attached to the Garda Síochána that might not necessarily be available locally, perhaps it should be sent to them as well.

In addition, Mr. Fearon said the Department had investigated this matter. Is it not the case that it carried out its own investigation on what happened in this case and decided that this was necessary? We invigilated on the Committee Stage of the harbours legislation which changed the boards. The shenanigans that allegedly had gone on in Shannon-Foynes and the administration which was in place there was a fundamental reason we now have these different types of smaller boards.

Did the Department carry out an investigation into this? Some of the ports are very large operations, for example, Dublin Port, which certainly has paid a dividend to the State in recent budgets. Give that this is the case, did the Department do its own investigation and has it reported on that to the Garda bureau?

Mr. John Fearon

We did not carry out a formal investigation in the sense being referred to by the Deputy. We rely on the fact that the structures in place here are those of a commercial semi-State company, and we would see it as being primarily the responsibility of that board to conduct the corporate affairs of the company.

We looked at what had happened and the reports that were made available to us. Follow-up action was taken on foot of those reports. The essential action was to the effect that the personnel involved in the company at the time in those positions was changed in the intervening period.

Given, as Mr. Fearon knows, we have had this discussion in the last few days in regard to the commercial semi-State companies, and a couple of Departments are responsible for the bulk of them, namely, the former Department of Communications, Marine and Natural Resources and the Department of Transport, is there a specific unit that invigilates the administration of the commercial semi-State companies under the Department of Transport's remit and in particular the port companies in Mr. Fearon's section?

Mr. John Fearon

At a technical level, we do not have a specific unit. However, for each of the public sector companies we deal with there is a corporate section within the Department to oversee what they are doing. Much of that work is concerned with going through their processes and requiring the chairman or chief executive to confirm that appropriate procedures have been followed and in the event of the Department being concerned about a particular issue, we ask about it. I am repeating myself, but I believe the action taken within the past 12 months has improved the level of oversight of corporate governance between the Department and these companies.

Mr. Fearon says the ambition of the Department is to review the group of port companies regularly from next year onwards, looking at capacity and other issues which are so important for our island country. Over recent years, particularly in the light of the shocking events and reports from Shannon-Foynes, has the Department had concerns about any other companies? Has it held any investigations into any other companies on the ports side?

Mr. John Fearon

I can only speak of recent months in regard to my time there, and within that time we have gone though the corporate governance guidelines in each of the companies to try to establish the strengths and weaknesses of the systems in place. Some places need strengthening and we have asked the companies concerned to follow up on the processes.

We have looked at three or four annual reports and have gone through all the ports under the Department's remit at this stage. The Dún Laoghaire board was before the committee recently. We have seen that the annual reports and glossy statements by companies may not necessarily indicate if there has been a failure of corporate governance. Were there occurrences in any of the other companies which gave the Department cause for concern?

Mr. John Fearon

It is fair to say not at the level the Deputy is indicating.

Did the Department come across any alleged misappropriations, for example?

Mr. John Fearon

No, we did not.

There were none at all.

Mr. John Fearon

That is correct.

There was some problem with Arklow but I do not believe it was misappropriation.

Mr. John Fearon

That is correct. We are keenly aware where the rules are not being followed. The tension that exists between the Department and the companies concerns the extent to which we insist on compliance with particular rules. That presents particular difficulties for some of the companies. For example, we are insisting on internal audit arrangements being established, and issues such as that which might not always have been in place and the feedback we get tends to be about the difficulty such initiatives might present in terms of the size of a company and its ability to get those types of processes in place.

We have been very clear with the companies that the question of corporate governance is critical, that we take it seriously and that we will continue to insist on the processes being followed rigorously. That presents its own difficulties. In the first year there were some aspects with which we were not entirely happy. We have asked them to improve on those but they would not amount to the gravity of the concerns indicated by Deputy Broughan.

Yes, I am talking about misappropriation. Before I hand over and because Mr. Fearon is giving us an overview and knows the work our consultant is doing for the committee in this regard, I have a couple of broader questions. On the issue of the capacity of Dublin Port, if the planning application for infill, which is before An Bord Pleanála and was reviewed in All Hallows College last week, is not successful, how does Mr. Fearon see Dublin developing as the premier port? Does he foresee any possibilities for a downstream port with linkages to Greenore or anywhere else on the east coast? Does he have concerns if the An Bord Pleanála decision is negative that this will leave us with problems after 2025 or 2030 given that my constituency and the neighbouring one have for decades been bitterly opposed to the port proposal while insisting there is plenty of available land?

On normal business and concerning the transfer of the ports to local authorities, I noted in my territory – other Deputies might say the same of their areas – that Fingal did not have the resources necessary, given the current economic situation, to carry out the sea defence and other works necessary in places such as Balbriggan. Similar concerns were raised about some of the transfers in the south west and other places.

Could we try to keep this brief because we have another session following this and I understand we want to proceed with that without delay? Perhaps we can draw this particular session to a close. I remind members, and obviously I shall be guided by them, that there will be a meeting on 13 January, where officials of the Department are coming in again. Perhaps we could have some responses then if members pose the questions now.

The problem with the annual reports for Shannon Foynes was that the question of internal audit arose several times, and it was decided that it would be too expensive to have an internal auditor. This went on for two or three years, where the report went to the Minister and the company officials told him they would get an internal auditor the following year. However, it never happened. The point is that there was information about wrongdoing within the Department, yet it did not act on it. The taxpayer is losing money, yet the Department is not acting on it. The problem is that the port companies are not accountable to the Comptroller and Auditor General, so to whom are they accountable if they can get away with this?

Is there a case to be made where there are clear findings against a company like this? Is there a method through which it can be referred to the Comptroller and Auditor General? Notwithstanding the fact that they do not have a statutory duty in respect of the running of the company, if there are significant issues about how the company operated financially, could it be referred to the Comptroller and Auditor General by way of a reference to those issues?

There are particular rules about commercial semi-state companies. I was bitterly opposed to the downgrading and elimination of the Department of the Marine. Given that we are a maritime country, it is astonishing that all sections dealing with marine issues were not gathered together. They were in a few Governments. The maritime section has gone back and forth like a shuttlecock between different Departments, which is not good practice for the country's corporate governance. I know people wanted to get rid of fisheries and dump that section somewhere else because the fishermen and their families were such strong political activists and could make their point of view. It seems that it was overall bad governance that led to the breaking up of the Department of the Marine. I know this section is now in the Department of Transport.

We are probably straying into an area that is wide of what we intended today. Perhaps that information could be communicated to the Deputies concerned at a later stage.

I would like the answer to the question on the Comptroller and Auditor General.

Mr. John Fearon

That issue was mentioned to the Minister in the Dáil during the week. He indicated that he did not consider that the involvement of the Comptroller and Auditor General was appropriate. The procedures are there to deal with issues like this. The fact is that they are commercial companies and are subject to the same obligations of other companies.

The Minister referred to a different question. I was asking about CIE. The Minister said that if he remained dissatisfied with a report, there are other issues that he could consider. For the meeting in January, we should look at the issue of what other actions could be taken when there is a clear finding against a company. There is no doubt about it in this case.

We will conclude on that point. I thank Mr. Fearon and his officials for coming in today, and we look forward to seeing them again. Before we suspend, I will ask the Vice Chairman to take the Chair for the next session.

Are you happy with what you are doing?

I am happy to let the Vice Chairman earn his stipend.

That has already gone through.

As the Vice Chairman of another committee, I am well aware of that.

Sitting suspended at 4.45 p.m. and resumed at 4.48 p.m.
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