JOINT COMMITTEE ON TRANSPORT debate -
Wednesday, 21 Apr 2010

Shannon Foynes Port Company Annual Accounts 2006-2008: Discussion.

Acting Chairman (Deputy Timmy Dooley)

I welcome Councillor Kieran O'Hanlon, director of Shannon Foynes Port Company, Mr. Pat Keating, chief executive of Shannon Foynes Port Company, and Ms Kay McGuinness, chairperson of Shannon Foynes Port Company.

The item on the agenda is a discussion with the port company. I remind members and witnesses of the long-standing parliamentary practice to the effect that there should be no comment on, criticism of or charges made against any person outside of the House or an official either by name or in any way as to make him or her identifiable.

Following the presentation I propose to take a number of questions from members. Who will make the presentation?

Ms Kay McGuinness

I will start, Chairman. As chairperson of Shannon Foynes Port Company I am delighted to appear before the committee today to discuss at its request the company's accounts from 2006 to 2008. Before I do so, and given that this is my first appearance before the committee, I should like to take the liberty of setting out for members a brief overview of the current position on the Shannon Foynes Port Company. I will also outline some of the exciting developments that are helping us achieve our goal of utilising the enormous potential of the Shannon Estuary.

It was my privilege to be appointed chairperson of Shannon Foynes Port Company in September 2008 together with five other new board members. We came on board at a time of transition for the company. There are significant opportunities ahead for us at both our Foynes and Limerick ports. However, in seeking to maximise those we must first overcome some key challenges. I take this opportunity to ask the members for their support in that effort.

Among the challenges we must tackle is the upgrading of the road and rail connections to Foynes Harbour. Notwithstanding that, we remain confident. As I noted, our business is on an upward curve again and there are some significant projects on the way for the estuary, not least the planned Shannon LNG terminal gas pipeline project at Ballylongford. That will generate up to 500 jobs during its construction and will involve an investment of €400 million. Again, I ask members for their full support in ensuring that becomes a reality.

We had another positive development this year with the opening by Atlantic Fuel Supply Company of the largest deep water oil terminal built in Ireland in 40 years. The company is in the final stages of developing a €30 million facility at Foynes, which will have the capacity to supply 15% of Ireland's fuel requirements, and includes a significant investment in specialised bio-fuel tanks to help Ireland achieve its renewable energy targets.

The contribution made by Shannon Foynes Port Company to the economy of the mid-west is underestimated. In attempting to give members an indication of that contribution, suffice to say that today we are Ireland's largest bulk cargo port company handling on average up to €10 million tonnes of cargo from 800 vessels per annum.

Our role as a key economic driver in the region is underlined by the fact that one of our strongest performing sectors is dry bulk traffic including animal feeds, oils and minerals, all of which are at the core of the mid-west economy.

Among our strengths is the adaptability and resourcefulness of our executive team and staff. We showed that to significant effect during the prolonged cold period of the past winter as we played a major role in securing up to 23,000 tonnes of salt during that critical period to help local authorities across the country get the road network moving again.

The objective of the current board is simple. We intend to continue the development of both traffic and revenues to ensure the company can deliver its exciting potential to the benefit of the mid-west region.

Further proof of the potential of the Shannon Estuary is the significant investment by the national oil reserve agencies, which are responsible for storing Ireland's strategic emergency oil requirements in 250,000 cu. m of storage at Tarbert Island.

Before handing over to our chief executive, Pat Keating, I will stray briefly from the subject matter, namely, the accounts from 2006 to 2008, to address a matter that arose in February last regarding the chief executive's salary. We were not in a position to respond to the committee's request for detail on the CEO's salary then for the reason that we did not have a chief executive in place. I am happy to say that has been remedied and Pat Keating, who is present, was formally appointed CEO at our board meeting at the end of March. Now that we have a CEO and therefore a CEO salary to disclose, we are happy to do so and have provided that in writing to the committee. That should be with members today.

I again express my thanks for this opportunity to speak to the committee and for members bearing with me as I set out in brief what I believe is the positive direction this company is taking. I will now pass over to our chief executive, Pat Keating.

Mr. Pat Keating

I would like to thank the Chairman and the members of the committee for giving us the opportunity to present to them today the 2006 to 2008 financial statements. The presentation includes an overview of the trading and financial summary for 2006 to 2008 and the future development plans and requirements of the port company.

Shannon Foynes Port Company is responsible for the maritime management of one of Ireland's premier natural assets, the Shannon Estuary. As one of the largest port operators in the country, the company has statutory jurisdiction over all marine activities on this magnificent 500 sq. km watercourse stretching from Kerry to Loop Head to Limerick city. The strategic location of our terminals on the estuary offers access to the vibrant economy and population of a large part of Ireland.

The company provides a variety of services from controlling navigation and marine safety to warehousing, logistics and cargo handling. We handle the largest vessels entering Irish waters, up to 225,000 tonnes dead weight, dwt, and have a track record of continuous growth and innovation. We facilitate 35% of the country's non-unitised trade and cater for 58% of the nation's dry bulk market. All our operations are accredited to ISO 9001:2000 by Lloyds Register Quality Assurance.

In terms of our trading and financial performances from 2006 to 2008, while I am currently precluded by Oireachtas requirements from discussing our 2009 financial performance I can comment on tonnage throughput for that year. Tonnage throughput declined by 30% during 2009, however, turnover declines were much more modest due to cargo mix and associated marginal revenue characteristics. I can confirm that the company remained profitable during 2009.

Our larger independently owned terminals were significantly affected by the global downturn in industrial output and the consequent sharp fall in demand for supply chain related materials, particularly in quarter two. Furthermore the double digit decline in Ireland's industrial demand for electricity had significant impact on the inputs for the energy sector serviced by the company. Our general cargo terminals performed much better with Foynes recording a 9% decline in tonnages. While negative and unacceptable in the medium to long term, this performance reflects well when compared with some of the other commercial ports where the national average decline was in the region of 20% with declines as high as 40% recorded in some instances. Our directly managed terminals are benefiting from the much increased flexibility offered to customers in recent times with our significant investment in cranes, hoppers and warehousing during the past several years. There are still initiatives we want to pursue to increase our competitiveness and we will pursue these in conjunction with port users during 2010 and beyond. Most of our trade sectors were sluggish, particularly the break bulk market with its reliance on the construction industry supplying products such as steel, timber and cement products. The agricultural sector returned a mixed performance with strong growth in animal feeds throughput of 20% offset somewhat by the retrenchment in national fertiliser sales.

It is noted that the fall in tonnages reflects negative macroeconomic forces and I am happy to report that we either maintained market share or in some cases grew market share in our core areas. This is evidenced by the relative robust performance of the Foynes terminal when compared with the general terminals of some of the other ports.

I will move to the later pages of the presentation as the content of the new few pages were covered previously.

Acting Chairman (Deputy Timmy Dooley)

We tend to ask delegates to give a general overview of the position.

Mr. Pat Keating

I will move on to page 4 of the presentation, which deals with future development; this covers some important areas that I would like to draw to the committee's attention.

We believe the Shannon Estuary is currently under utilised from a commercial maritime shipping perspective. To maximise its potential, it is necessary to promote its capabilities internationally. It is most suited to projects of scale requiring maritime expertise such as the ESB's Moneypoint or Rusal's alumina plant. The Shannon Foynes Port Company, SFPC, has shown it has both the physical infrastructure and marine expertise to assist any potential investor or promoter. However, given the scale of the projects envisaged — which by their nature are in excess of €300 million per project — a team or joined-up thinking approach is necessary. It is vital that all the relevant local and regional authorities, together with the regional and national development agencies, are on board from the outset. In this regard, we have identified all suitable deepwater sites on the Shannon Estuary and teamed up with the relevant local and regional authorities to include in their development plans appropriate zoning of the lands adjoining these deepwater sites. We should be able to hit the ground running whenever a potential promoter displays interest and general zoning requirements should be in place beforehand.

With regard to marketing, we have recently launched an international promotional drive, in conjunction with the IMDO and the IDA, whereby the IDA has undertaken to promote the Shannon Estuary across all its international offices and to its current and potential FDI clients.

Since our appearance before the committee last December we have made progress in identifying and promoting the Shannon Estuary as Europe's ocean energy hub. The ocean energy hub initiative is being promoted by the SFPC, the IDA, Shannon Development and the Sustainable Energy Authority of Ireland and collaborative marketing material is already printed and in circulation. The case for the ocean energy hub is clear given that the west coast of Ireland is Europe's closest point to some of the world's best wind, wave and tidal resources. As global attention focuses on harnessing these natural forces to provide sustainable and clean energy for future generations, having a base to access and service the generating platforms is a key consideration for the industry. The Shannon Estuary is ideally placed to cater for all the needs of this vital sector due to its proximity to the optimal sites, a deepwater port for large vessels, a gateway city with advanced third level education institutions, access to the high voltage electricity grid, designated sites such as the Kerry deepwater zone and Askeaton land bank and its proximity to Shannon Airport.

With regard to the SFPC's direct investment in infrastructure, the Foynes terminal has been earmarked for substantial upgrade in future years. We have completed a roadmap for future infrastructure development that has the flexibility of being implemented over a phased timeframe. Any investment is subject to cost benefit analysis in line with the appraisal guidelines for capital investment. In short, the plan provides for an additional 300 m of quays and 14 acres of infill to give much needed additional open quay storage at Foynes. We have completed the engineering feasibility study and should be ready to commence planning in the foreseeable future. Our aim is to have the statutory consents process complete so that we can commence construction as soon as it is economically justified by business demands. Other more short-term projects include a new fire fighting system to facilitate the new 80,000 cu. m deepwater oil terminal, a new office headquarters and the upgrading of our VTMS system to facilitate the LNG project and other large-scale future projects.

One area of major concern to us is the Shannon Estuary's connectivity to the motorway and rail networks. This issue was expanded on in the briefing document of last December. Given the estuary's national strategic importance and the economic potential it has to offer, we view it as being short-sighted not to include in the national plan first rate road and rail connections to the estuary. We estimate that for a cost of €23 million the lower estuary could be connected to the proposed M20 Limerick to Cork motorway. This would be a small price to pay for unplugging the economic potential that is the Shannon Estuary. We are currently engaged with the relevant authorities to have these issues addressed in the mid-west area strategic plan.

Our relevant local authorities together with the Mid-West Regional Authority are currently drafting their development plans for the period 2010 to 2016. It is vital that these plans capture the requirements of the region to facilitate economic growth in the coming years and that they clearly specify policy in terms of economic development, connectivity and land use zoning. Furthermore, it is an imperative that environmental policy supports economic development policy rather than promoting environmental conservation to the detriment of sustainable economic development. In summary, the planning authorities must recognise: the ports of Foynes and Limerick and the Shannon Estuary as a strategic economic driver for the region; the potential synergies that could exist between port activities, the Shannon Estuary and Shannon Airport in facilitating a transport corridor within the county and the region; the significance of maritime and associated activities to existing and future employment growth in the region; the potential of the estuary to contribute to the wind energy industry and its promotion as an ocean energy hub; the strategy and associated document as a business plan for the region, to be reviewed by all potential operators and investors focusing on future development areas and in particular infrastructural investment; the direct economic and policy objectives that support the continued development of the Shannon Estuary and its ports in contributing to long-term economic development for the mid-west region, thereby ensuring sufficient confidence and providing certainty to potential investors; and adequate road and service infrastructure to ensure that the Shannon Estuary and particularly its existing ports can be realised to their full economic potential.

In terms of our observations, with regard to the general framework under which all the commercial ports operate, we believe the approval process for foreshore leases and dredging licences could be streamlined to better serve all stakeholders. The ongoing foreshore application by Shannon LNG is a particular case in point. Shannon LNG was the first project to be granted planning permission by An Bord Pleanála under the Planning and Development (Strategic Infrastructure) Act 2006. Planning permission was granted in the first half of 2008 but to date Shannon LNG has not received a foreshore licence. The objective of the Planning and Development (Strategic Infrastructure) Act was to fast-track certain projects but the reality is that the foreshore remains outside this process leading one to question whether Ireland is open for business as the current regime does not facilitate the timely processing of investment projects.

We note the Harbours (Amendment) Act 2008 provides for the amalgamation of the SFPC and Tralee and Fenit Harbour. We are not convinced this amalgamation would be in the best interests of all the parties concerned. Our board has made a submission to the Department of Transport in this regard.

Acting Chairman (Deputy Timmy Dooley)

Before I open up the discussion to the committee, I wish to make a few comments. I note the level of work the port company has done in terms of its engagement with the other State agencies in the region. I read the documentation and Mr. Keating's presentation prior to this meeting and I believe the port company is taking the right approach in a difficult time. As Mr. Keating will be aware, that region has been identified by Shannon Development and I am sure Deputy Neville will agree that region has some of the best winds and conditions for developing the clean and green energy sector. Shannon Development, in association with the two universities in the region, has a very strong focus on developing it as a green energy hub. The company clearly has a major role in that. I note from the documentation that much of the wind energy equipment, such as turbines, comes through the port and that is obviously where the company sees its future.

I am also interested in some of your latter comments relating to the foreshore licence, particularly for the Ballylongford project. I have known about that for some time. It is a great opportunity to develop business in the region. The 500 jobs would certainly be welcome and long-term benefits would accrue. If there is anything further the committee can do in terms of trying to get the foreshore licence delivered, we would work with you on it. I am aware from smaller projects, sewerage schemes and so forth where foreshore licences are required that it is an extremely slow and arduous process. At one stage it was spread across three sections of two Departments but I understand that recently the powers were handed over to one Department, which might make it more straightforward. Do you wish to add anything further on that?

Mr. Pat Keating

The foreshore is now within the remit of the Department of the Environment, Heritage and Local Government. It is probably a good place for it because the same Department is responsible for planning. The issue is the time delays involved. People do not have an issue with the foreshore process itself, but the time it takes to get something processed. Perhaps that is a resource issue.

Acting Chairman (Deputy Timmy Dooley)

I propose that the committee write to the Minister for the Environment, Heritage and Local Government seeking an update and requesting that the process be expedited, if possible. Is that agreed? Agreed. We will be happy to liaise with the company on that. Well done on the work you have done. I acknowledge it is in a transition mode and that it is often difficult to get back on focus. However, it is clear from the presentations today, and from what I know about what the company does in the area, given that I live in an adjoining constituency, that you have taken up the challenge. That is welcome.

Deputy Fergus O’Dowd

I welcome Ms McGuinness, Mr. Keating and Councillor O'Hanlon. We already had a debate with the two gentlemen and I hope to continue that. First, I wish to put on record my request, which was made through this committee, that we deal with audited accounts from 2002 to 2009. However, it appears the company was only prepared to deal with the years 2006 to date. I am concerned about that. We offered through the committee secretariat to deal with 2002, 2003 or 2004 separately but the port company refused to do that. I am deeply unhappy about that.

Ms Kay McGuinness

It is just that the request for 2002 to 2005 arrived less than a week ago to us. We have a board meeting and our annual general meeting, AGM, this week and we do not have the staff resources to turn it around for the committee. It is not that we were not willing to give the information to the committee; it was due to the timeframe. Originally, the request——

Deputy Fergus O’Dowd

I do not accept that. I accept the integrity of what Ms McGuinness says——

Acting Chairman (Deputy Timmy Dooley)

Wait, has Ms McGuinness finished her response?

Ms Kay McGuinness

Yes.

Deputy Fergus O’Dowd

I wish to make it clear that I am dealing with significant failures of corporate governance within the Shannon Foynes Port Company for a number of years dating back to 2002. They concern land deals and deals relating to the hire of a boat. It is put most succinctly by the assistant Secretary General of the Department in his analysis this year. The port company is a commercial semi-State company and responsibility for corporate governance lies with the board. He said it had not satisfactorily discharged this function and his examination of all the material in the files showed there was a significant failure to comply with corporate governance procedures. He said this applies to both disposal of lands and the boat contract with the chief executive. In both instances, board members, including the chief executive, were involved.

The representatives have given a commitment to return before the committee as soon as possible after Friday to discuss the earlier years. With regard to the accounts for 2006, I refer to a letter from the then chairman, Mr. Kieran McSweeney, to the Department specifically relating to the contract of services for the use of a boat between Shannon Foynes Port Company and Irish Inshore Support Services Limited. In October 2006, the then chairman of the board wrote to the Department saying that different versions of this contract were presented to him in the previous three weeks. What are the details of that contract? How much did it cost?

Mr. Pat Keating

I will first repeat what Ms McGuinness said about us returning to the committee. We simply did not have the resources on short notice to deal with a request to refer back to 2002 up to 2006. We will return to the committee to discuss those years if the committee wishes. There is no issue with that.

With regard to the question, as we explained on the last occasion, much of that is subject to a court case. We have received written legal advice from a prominent senior counsel that we cannot delve into that. First, we are not covered by privilege and anything we say here could incur more costs for the company. Second, the legal advice is that the port company does not have authority to disclose Deloitte's report. As much as we would like——

Deputy Fergus O’Dowd

With respect, I have not mentioned Deloitte.

Acting Chairman (Deputy Timmy Dooley)

The Deputy should let the witness finish, after which he will have an opportunity to speak again.

Deputy Fergus O’Dowd

I am asking about the accounts for 2006, nothing else.

Mr. Pat Keating

We wish to assist the committee as much as possible but, in this particular area, where something occurred in the past and on which there has been a High Court settlement, we have a written legal opinion from a senior counsel stating that we do not have the authority to delve into the matter. We would like to be able to give the committee confidence that the company has learned from the past——

Deputy Fergus O’Dowd

Chairman, I must intervene.

Acting Chairman (Deputy Timmy Dooley)

I will give the Deputy an opportunity. I wish to be fair to everybody.

Deputy Fergus O’Dowd

Chairman, let us be very clear on this. We started this meeting at 4 p.m. and it is now 4.30 p.m. We have an important meeting at 5 p.m. The questions are not about the Deloitte report but about what the witnesses agreed to appear before the committee today to discuss, the accounts for 2006. Can Mr. Keating tell me about the award and execution of the contract which was signed and minuted at the board meeting on 10 January 2006? What was in that contract?

Mr. Pat Keating

I would like to be able to disclose the information but, legally, am barred from doing so.

Deputy Fergus O’Dowd

That is rubbish.

Mr. Pat Keating

We cannot——

Deputy Fergus O’Dowd

Rubbish.

Acting Chairman (Deputy Timmy Dooley)

Deputy O'Dowd, we will give everybody an opportunity. While you might not agree with what Mr. Keating is saying——

Deputy Fergus O’Dowd

Hold on a second.

Acting Chairman (Deputy Timmy Dooley)

Let me finish. I must give Mr. Keating the opportunity to respond to your questions.

Deputy Fergus O’Dowd

Yes, but he is not responding to them.

Acting Chairman (Deputy Timmy Dooley)

Clearly, he is not responding in the way you wish, and you can certainly ask about that. I will allow the Deputy to speak again.

Deputy Fergus O’Dowd

Chairman, we have legal advice——

Acting Chairman (Deputy Timmy Dooley)

As Chairman, I must give Mr. Keating an opportunity to give you his information——

Deputy Fergus O’Dowd

Of course, but he is not answering.

Acting Chairman (Deputy Timmy Dooley)

I have given the Deputy latitude, and I will continue to do that.

Deputy Fergus O’Dowd

I also have a right. The problem is, with respect, that the company is not audited by the Comptroller and Auditor General, so this is the only place where the accounts of the company can be discussed. The assistant Secretary General of the Department of Transport has made serious findings against the company. The witnesses were not there at the time so it does not apply to them personally. I am entitled to ask a question to find out what was the nature of that contract. For the third time, what was the nature of that contract? What did it cost? Why were different versions of it presented to the then chairman? Why did the Department find that the information given by the chairman of the then audit committee was not acceptable? What was going on? This has nothing to do with the court case. This relates to cheques issued or paid by the company to the chief executive at that time who was the owner of the company which was supplying the boat. It is about that.

Mr. Pat Keating

With regard to our costs that year, there is a disclosure in our accounts regarding the contract the Deputy mentions. On one of the notes appended to the annual report there is a figure of approximately €50,000, which was paid to Irish Inshore Support Services. The note discloses that in the accounts.

Deputy Fergus O’Dowd

The contract was signed in 2006, but the boat had been there for some time previously.

Mr. Pat Keating

As regards that, while we were not there at the time, the company as an entity is the one we are dealing with. On behalf of the company, our written legal advice from our senior counsel is that because of all that went on, we cannot basically delve into those matters on two points. One is that the port company, at this point, does not have the authority to disclose, so even if it had wanted to, according to our legal advice, we cannot. The second thing is that we are not protected by privilege here.

Deputy Fergus O’Dowd

Whether he is or not, Mr. Keating is obliged to answer the questions. With respect to him, this does not concern him personally. I repeat that, so he is at no risk here. As Members of the Oireachtas, we are entitled to ask questions.

Acting Chairman (Deputy Timmy Dooley)

I just want to qualify that.

Deputy Fergus O’Dowd

I am not charging Mr. Keating with any issue. I am asking him to account, as chief executive of his organisation, for the contract that was signed in 2006 with this company. I am asking him if the chief executive of the company at that time was the beneficiary of this contract. Did he award it to himself?

Mr. Pat Keating

The 2006 annual report reveals that the chief executive had an interest in the company called Irish Inshore Services which received payment for a contract.

Deputy Fergus O’Dowd

This was in 2006, but the boat was there, allegedly, for two earlier years. Was there any contract in place for that then?

Mr. Pat Keating

I cannot comment on that subject due to the legal advice we have received. I do not have the authority. Even if the company wants to, it does not have the authority to go back in and talk about those matters here.

Deputy Fergus O’Dowd

Mr. Keating has to. We have legal advice.

Acting Chairman (Deputy Timmy Dooley)

I have no problem with the line of questioning, Deputy, but I just want to make a point. If Mr. Keating is relying on legal advice then that is his legal advice. I want to be helpful to all sides.

Deputy Thomas P. Broughan

I support Deputy O'Dowd. If they are published accounts — and we are talking about 2006, 2007 and 2008 — surely Mr. Keating can confirm what Deputy O'Dowd is saying, that the heading in the accounts was the actual amount. It seems to me that it is a published document, as I understand it.

Acting Chairman (Deputy Timmy Dooley)

He has done that.

Deputy Thomas P. Broughan

We are obviously not the Committee of Public Accounts, but under the Act we have authority to invigilate the accounts of a State port. We are now considering the accounts. Obviously, before 2006, Mr. Keating has great difficulty but surely the amounts in 2006, 2007 and 2008 have to be confirmed.

Mr. Pat Keating

On the 2002-2006 accounts, we will have no problem in coming back at a later stage, when we have had time to go back to review those and prepare ourselves. However, the point is that as regards this aspect of the accounts, because of the High Court settlement and the written legal advice we have received, we cannot go into that matter. That legal advice to us has been very clear.

Deputy Fergus O’Dowd

Whatever legal advice Mr. Keating has is one thing, but we have the opinion of the legal adviser of the Oireachtas. It is our job to invigilate his company and to ask questions concerning the accounts for that year. On legal advice, Mr. Keating is refusing to answer those questions. It is a disgraceful situation that a State company — over which very serious questions have been raised not just by the Assistant Secretary, but by the Minister who has serious concerns about all this — is refusing to answer the questions. Let me put another question to Mr. Keating. Were the discussions going on between the company's independent external auditors and the company's chief executive about the supply of services at the Shannon Foynes Port Company, by a company of which the chief executive is reported to have had a significant interest in advance of a tendering process having taken place? Did that happen?

Acting Chairman (Deputy Timmy Dooley)

Councillor Kieran O'Hanlon would like to add to that.

Councillor Kieran O’Hanlon

I appreciate what the committee is attempting to do. Our word at the time was on the same path, in trying to get to the bottom of some questions. However, we had very long and costly legal proceedings, which were taken against the company. The company is now on an even keel and is doing a very good job. We are in profit in difficult circumstances. The committee must appreciate that whatever answers we give here, we do not want to wind up back in the High Court with some individuals costing the company and the State a great deal of money again. I appreciate the line of questioning but, at the same time, the committee will have to understand where we are coming from.

Deputy Fergus O’Dowd

I do not accept that. This goes to the heart of democracy. State companies like Mr. Keating's come in here and answer questions on their audited reports. Mr. Keating was advised that this is what we wanted to ask him questions about. This is the year he picked to deal with and I am clearly asking questions about a contract at that time. May I ask that question again? Was the chief executive having discussions with the company's independent auditor about supplying a service from a company he was involved with, before tendering took place? That seems to be the kernel of it, so what the hell was going on here?

The other question I want to ask is this: in December 2006, the chairman of the Shannon Foynes Port Company wrote to the Department again saying they wanted to examine the files on this matter. The files were missing. They were taken by a Mr. Brian Byrne and that time the company requested them. Did Mr. Keating get those files back concerning this company transaction?

Acting Chairman (Deputy Timmy Dooley)

A name has been raised here, but the person is not present.

Deputy Fergus O’Dowd

I am sorry.

Acting Chairman (Deputy Timmy Dooley)

I would ask the Deputy not to refer to any individual by name, since they are not here and it goes outside the general guidelines.

Deputy Fergus O’Dowd

This is a letter from the chairman of the company at that time, a Mr. Kieran McSweeney. I am quoting from his letter.

Acting Chairman (Deputy Timmy Dooley)

That is fine.

Councillor Kieran O’Hanlon

We are not covered by privilege here.

Acting Chairman (Deputy Timmy Dooley)

I accept that.

Councillor Kieran O’Hanlon

Deputy O'Dowd has mentioned a name.

Deputy Fergus O’Dowd

It is just the name that is in the chairman's letter of that time.

Councillor Kieran O’Hanlon

We would be quite happy to take whatever questions we are not in a position to answer here today——

Deputy Fergus O’Dowd

Forgetting about the names, what is the pack drill? Did the file disappear and, if it did, did it come back? Did the company get that file back?

Mr. Pat Keating

All of that is subject to the legal advice we have received, which is subject to a High Court settlement. We have been strongly advised in writing by a senior counsel that we cannot go into that. It is not that we are refusing, it is that we do not have the authority. We would like to be in a position to be able to help the committee.

Deputy Fergus O’Dowd

I am trying to clarify the company's annual accounts for 2006. The question is that a contract was signed and a file went missing. I have asked Mr. Keating for details of the contract, but he has not given me those. I have asked if the file came back and he is refusing to answer that. This is not at all a satisfactory way of doing business.

Councillor Kieran O’Hanlon

We are obviously concerned for the company and its workers. We have put a great deal of effort in to try to get things right. We are not prepared to come up here and——

Deputy Fergus O’Dowd

Tell the truth.

Councillor Kieran O’Hanlon

——give answers that will bring us back into the High Court.

Deputy Fergus O’Dowd

No, that is not true.

Councillor Kieran O’Hanlon

However, as regards any questions that are asked here today, we are willing to come back, subject to legal advice.

Acting Chairman (Deputy Timmy Dooley)

Clearly, we are not going to advance things to anybody's satisfaction. I have a question, however, because serious issues have been raised. Have any of the files been presented to the Garda Síochána or has the Garda ever been asked to review any of this?

Ms Kay McGuinness

Yes, Chairman, but not by us. As we understand it, third parties have presented files to the Garda Síochána and, I think, also to the Office of the Director of Corporate Enforcement. Both had been asked to look into the matter. We have had communications from the Garda on the matter and it said that it could not substantiate the allegations. At this point as far as I am aware, something of a similar nature came from the Director of Corporate Enforcement.

Acting Chairman (Deputy Timmy Dooley)

I fully understand that Ms McGuinness is not in a position to divulge the legal advice. Based on the information she has, however, does she think it might be appropriate for the company to invite in the Director of Corporate Enforcement or the Garda Síochána, because there is clearly an issue here?

Deputy Thomas P. Broughan

On a point of information——

Acting Chairman (Deputy Timmy Dooley)

I will let Deputy Broughan in. Could Ms McGuinness answer that question?

Ms Kay McGuinness

I think that would be helpful. I do not have any problem with that proposal.

Deputy Thomas P. Broughan

I will start on that point about the Director of Corporate Enforcement. Is it not the case in regard to a State or a semi-State body that the director does not have a role if there is a failure of corporate governance because the invigilator is the Minister who, in this case, is the Minister for Transport? Ms McGuinness has been very reluctant to talk about matters with my colleague, Deputy O'Dowd. The Sunday Times, The Sunday Business Post and a range of other newspaper have covered this matter widely. I am not aware of any of them being sued or if anything has happened. They have written about matters which, apparently, are on the record. Is the Garda Bureau of Fraud Investigation carrying out an investigation?

Ms Kay McGuinness

As far as I am aware, it is not.

Deputy Thomas P. Broughan

There is no current investigation.

Ms Kay McGuinness

It has not gone any further.

Deputy Thomas P. Broughan

In regard to the 2006, 2007 and 2008 accounts, is it possible to say how much the legal action cost the board? Is it not noted in the accounts? What is the total cost of the legal action against the company?

Mr. Pat Keating

In the exceptional items in the accounts, there is a total charge for the three year period of approximately €4.6 million. Not all of that is to do with legal costs in regard to this matter. I would say it is somewhere around 50%.

Deputy Thomas P. Broughan

Does that include an award made to a former employee?

Mr. Pat Keating

I know I am repeating myself and that it is frustrating for the committee but we have been precluded from talking about specifics.

Deputy Fergus O’Dowd

The company is not a secret society; it is accountable to the Oireachtas for its annual accounts. We are entitled to ask questions and Mr. Keating is obliged to answer them.

Mr. Pat Keating

We have received legal advice. The fear of the company and the Minister is that there may be further legal——

(Interruptions).

Mr. Pat Keating

There is a real risk——

Deputy Fergus O’Dowd

I can quote to Mr. Keating what the Minister says later on.

Mr. Pat Keating

We have written legal advice from senior counsel stating that we do not have the authority.

Deputy Fergus O’Dowd

Okay. However, Mr. Keating must answer the question about the audit. If Deputy Broughan asks a question, Mr. Keating must answer it.

Mr. Pat Keating

As there is a linkage between the two——

Deputy Fergus O’Dowd

There is not.

Mr. Pat Keating

——on that matter of the accounts, we cannot talk.

Deputy Thomas P. Broughan

It is a matter of fact; it is not——

Mr. Pat Keating

As before——

Deputy Thomas P. Broughan

It is a matter of fact and of record.

Councillor Kieran O’Hanlon

As we said at the outset, we are quite willing to come back again to discuss previous years' accounts. If there are specific questions which members believe we have not answered, we will——

Deputy Fergus O’Dowd

All of them.

Councillor Kieran O’Hanlon

If there are specific questions, we would be happy to give Deputy O'Dowd the answers, following legal advice.

Deputy Fergus O’Dowd

This is a very serious issue——

Councillor Kieran O’Hanlon

Absolutely.

Deputy Fergus O’Dowd

——and the delegates are refusing to tell us the facts. I am looking for a copy of the contract with that company about the boat. I want a copy of the invoices. Were different types of contracts given to the chairman? He was so worried he wrote to the Department about the number of different contracts being put in front of him for the same thing.

Deputy Thomas P. Broughan

It has been alleged that the contract in question was a mechanism for something else entirely. That is the allegation.

Deputy Fergus O’Dowd

The point is that the chief executive at that time was the beneficial owner of that company, along with his wife. How many tenders were received? The Department has already asked these questions. Were advertisement placed in the newspapers? What were the findings of the then chairman of the audit committee when it met to advise the board on what happened? Is it not a fact that the Department rejected the chairman of the audit committee's findings? Was the chairman of that audit committee appointed to a board by the Minister? These are the questions to which we must get answers.

Deputy Thomas P. Broughan

In regard to the 16.5 acres and the strip of land ceded to Limerick racecourse, is there any mention of the opportunity cost of those lands, or of them, under accrual accounting rules in the 2006, 2007 and 2008 accounts?

Mr. Pat Keating

No. Those transactions predate 2006. In regard to what happened and the governance controls that were, or were not, in place, Deloitte did a very comprehensive review. Many new controls have been put in place. I am concerned about managing this company successfully into the future, but we must learn from the past.

The Minister stated that he has basically put in a new board. There is a new audit committee in the company which has been given a new independent charter in the sense that the audit committee has appointed an internal auditor which reports directly to the audit committee and to the board. The internal auditor, for example, does not report directly to the chief executive or the executive management. That line of reporting is straight from the internal auditor to the audit committee to the board. That is a significant change.

The company has introduced significant new policies — for example, on procurement and the purchase and sale of assets. All of these are new policies which the board has since introduced. We recently introduced whistle blowing policies and travel and expenses policies, so the board has been very active in updating, and keeping updated, its corporate governance mechanisms and controls. Part of that is that there is annual corporate training for the board and the management.

A raft of changes have been made at governance level to ensure our systems of internal control are bolstered and that much independent auditing takes places from an outsourced audit firm which is independent of our external auditors and which reports directly to the audit committee.

Deputy Thomas P. Broughan

I accept the difficulties in regard to the period of time before 2006. Is Mr. Keating saying internal audit has a significant case to answer before 2006? Is he happy that from 2006 to 2008, the internal audit function performed well?

Mr. Pat Keating

There has been a review of the system of internal control. Recommendations were made to improve our systems on which the company acted. It basically put new controls in place. As I said, the corporate governance environment at the company has been bolstered on foot of those recommendations.

Deputy Thomas P. Broughan

In a previous forum and during Question Time, Deputy O'Dowd and I have raised serious issues which have come into the media and the complaints we have received from Limerick and Clare about the matter. Does Mr. Keating believe it would be fair to say there was a total failure of corporate governance in a major State company? Shannon-Foynes Port Company is one of our major ports with a huge future, and I will ask questions about the future in a moment. Would Mr. Keating say there was a spectacular failure of corporate governance given the type of lay reports in the media about what seems to have happened?

Mr. Pat Keating

The review was carried out by Deloitte and it made recommendations. It is the expert in the field. We have acted on the recommendations and bolstered what we have. Corporate governance is continuously changing. As late as May 2009, the Minister issued new corporate governance guidelines. The guidelines require that whistle blowing polices, travel and expenses policies and subsistence policies and a new system of risk management are introduced into all State companies. We have done that. We are working on our risk management system currently, which is a very complex new system to us all. Corporate governance evolves as we go along. It is difficult to compare at two points in time. On the code of practice for the governance of State companies, we are more than satisfied with the level of compliance through that code that we have today, and our internal auditors have reported back to the board on that matter and given the company a clean bill of health.

Deputy Thomas P. Broughan

Just to——

Acting Chairman (Deputy Timmy Dooley)

There are two other speakers who I want to bring in.

Deputy Thomas P. Broughan

I have one or two brief points to make regarding the long-term debt. First, all our salaries as public servants are well known. What is Mr. Keating's?

Mr. Pat Keating

Mine is €115,000.

Deputy Thomas P. Broughan

Is that the salary going forward?

Mr. Pat Keating

Yes.

Deputy Thomas P. Broughan

On the reference made in the address to long-term debt and how the board is coping with that, what is current position? Mr. Keating might also expand on the company's provision for the liabilities and charges. In particular, he mentioned the pension fund. What is happening in that area?

Mr. Keating made an interesting case. As he will be aware, ultimately, the purpose of this committee was not to discover the shocking facts about past Administrations but to look at Ireland's port needs. We see a core role for Shannon-Foynes Port Company in that. What is the company looking for? It was not clear from Mr. Keating's speech what he was looking for. I can see the roads situation. What is the company looking for in rail freight?

Acting Chairman (Deputy Timmy Dooley)

Before Mr. Keating replies, I will bring in the other two speakers, Senators Brady and O'Sullivan, to pose their questions.

Senator Martin Brady

I welcome the delegation, Ms Kay McGuinness, Mr. Pat Keating the chief executive, and Councillor Kieran O'Hanlon and wish them well for the future in their new positions. I studied their documentation. Their work programme or business plan is a challenging one for the future. It is important that they be given the space to focus on future business expansion, which is an important issue, and that they be given every encouragement and assistance possible from this committee. Their work involves jobs, finance, future expansion, etc.

Deputy O'Dowd raised questions, and that is his job. He is entitled to do so. I understand from where Mr. Keating, as chief executive, is coming. Due to legal reasons there is a part of those questions that Mr. Keating cannot address. On the other ones, he stated he would come back at a future date and he would have the information required. I do not know what more Mr. Keating or Deputy O'Dowd can say about that. Maybe Deputy O'Dowd can find some other route. I do not believe Mr. Keating has a hidden agenda or anything like that. We could go on all evening stating he is not answering the questions, he is not up-front, etc. I certainly do not believe Mr. Keating has a hidden agenda and if he got legal advice that he cannot engage on a particular issue, that is fair enough. I am not trying to take sides here but if Deputy O'Dowd does not believe that, then he should find some other route to get what he thinks he has a right to.

Deputy Fergus O’Dowd

The committee is where one gets these answers. The answers relate to the company's annual accounts.

Senator Martin Brady

That is all I have to say.

Acting Chairman (Deputy Timmy Dooley)

Senator Brady was making a point.

Senator Ned O’Sullivan

I thank the Chairman for allowing me address the committee even though I am not a member. I have a deep abiding interest in the welfare of Shannon-Foynes Port Company as I was a director of it for over 16 years. At the outset, I welcome the chairperson, Ms McGuinness, the CEO, Mr. Pat Keating, and Councillor Kieran O'Hanlon, with whom I had the pleasure of serving for many years.

I sympathise with our visitors in their dilemma. Clearly, they want to be of assistance to the committee but they have got serious advice which they must heed. As they have stated and as I know as a former director, litigation has cost the harbour a great deal in its many manifestations down through the years. I was one of the last of the Limerick Harbour Commissioners and I was a director of Shannon Port Company before it became Shannon-Foynes Port Company. I thought that the company was working for solicitors at one time because the tail was wagging the dog so much and the bills were considerable. I can appreciate why Deputy O'Dowd wants to ask these questions. He asked keen, pertinent and pointed questions and is obviously well advised in his access to reports of which I am not aware, even though I was a director. Whatever we do at this committee, the last thing we want is to have an outcome that will cost this State port further moneys and further tie-ups in High Court and Supreme Court hearings. That is my preface.

I have no legal advice taken for this meeting but I am advised I have privilege as a Senator, and I might be able to make one or points. As to whether I am properly advised to do so, I do not know. I will give a rough outline of my opinion of some of the points that would be germane to what Deputy O'Dowd is getting at.

In my opinion, the difficulties in Shannon-Foynes Port Company grew out of a particular initiative which was called the Limerick docklands initiative, which was dreamed up by a former chairperson of Limerick City Council. It was a tripartite initiative involving Limerick City Council, Shannon Development and Shannon-Foynes Port Company but like all great ideas, it ran into difficulties and Shannon-Foynes Port Company was left holding the baby because the other two bailed out. Then it became a political issue because one of the elements of the initiative was closing down Limerick docks. As a Kerryman, I had no problem with that but, obviously, it was a very big problem for people in Limerick.

Deputy Fergus O’Dowd

Some €60 million on a tunnel.

Senator Ned O’Sullivan

It became a political issue and it led to a clash in council deliberations. Ultimately, it led to a serious breakdown in trust between the chief executive officer and the chairman, and it led to a divided board. There is the genesis of much of the trouble that we are talking about.

I would rather be here talking about this document, which I think is outstanding. As a public representative in Kerry, there are a couple of serious pressing issues at present. Members might not be aware but, as we speak, there is a public hearing in Listowel on the Endesa plans for the new gas fired generating station. This involves real jobs and real issues. When there is a divided board, one gets leaks and allegations and counter-allegations, and dirty linen is brought out. We have had a good examination into the political pond life of Foynes and West Limerick in all of this.

Here is what I would say to Deputy O'Dowd. Not only was I a director at the time, I was appointed by the board to a committee of inquiry which was headed by an eminent person, a former Secretary of the Department of the Marine. That inquiry was aborted because of High Court proceedings; we never got beyond the first stage. However, I must say I saw nothing — I was privy to a good bit of information — that would suggest to me that any particular individual was on the make, on the inside track or lining his pockets. If I thought otherwise, I would have another opinion. That was my opinion at the time.

The one issue to which I will refer is the issue of the boat. My honest opinion about that is it was a rather clumsy effort by the executive of the board at the time to deal with an anomaly where the chief executive was not getting the same wages as the chief executive of Cork harbour. One can laugh if one likes — that is it. There was a parity and relativity between the two harbours, somebody slipped a notch, and a device was put in place whereby additional services would be provided by the CEO and he would be remunerated for them. It was clumsy but it was not dishonest, and that is my honest opinion.

This committee will not do any service to the State, to these three individuals here and to the welfare of Shannon-Foynes Port Company by coming in here next month, the following month or the month after that with more questions about issues which, if I thought they were serious I myself would be asking the questions but which, from my experience, I believe are not. I cannot expect anybody here to take that on trust. Deputy O'Dowd cannot take that on trust. However, I would say to those asking these questions to look at from where the questions are coming and why persons are asking them, and is it of overall merit to the body politic that they should even be asked.

(Interruptions).

Senator Ned O’Sullivan

People can laugh, but I am looking to the future. I am concerned about 500 jobs in north Kerry and west Limerick. That is not a matter about which people should laugh. Deputy Deenihan, who I compliment on raising this issue in the Dáil last week, would not laugh because he is aware of the importance of what I am saying.

I welcome the document and I am glad the Acting Chairman has proposed that we should move immediately to deal with issues relating to the foreshore. We must get real. If questions cannot, as the legal advice appears to indicate, be answered, then we should stop asking them and, as Senator Martin Brady suggested, try a different route instead.

Deputy Fergus O’Dowd

This matter relates to the accounts of the company. I inquired about a contract that was signed in 2006. Our guests have refused, on the basis of legal advice they say they have obtained, to answer my questions. I am of the view that said advice was more relevant to the Deloitte report than to the questions I have posed. The legal advice available to the committee indicates that they are legally obliged to answer the questions I have posed. The country has undergone an awful trauma in the context of the corruption that has emerged in public life and the banking sector. Our guests have serious and significant questions to answer in respect of corporate governance issues relating to the board of which they are members. It is important that these questions are answered. How can we otherwise ensure the system currently in place is any better than that which obtained during the period to which my questions relate?

I acknowledge the points that have been made in respect of changes to the corporate governance regime. It may surprise Senator O'Sullivan that in January the Minister for Transport, Deputy Dempsey, indicated that this issue still bothers him. Did an outside agency carry out an investigation into the affair relating to the land deals and the boat? The Minister and I share the same view on this extremely serious matter. I am prepared to follow through in respect of it and this is the forum where I should do so. This matter relates to land being sold by the port authority and the fact that its best site is now lost to it forever. There is also the fact that there were serious breaches of corporate governance procedures by the board. I remind Senator O'Sullivan that board members were implicated in these significant failures to comply with such procedures. Those people are named in the document in my possession.

I understand a member of the board appointed by a Minister was acting in an executive capacity and was negotiating for and on behalf of the board when he had no right to do so. He usurped the authority of the board and took it upon himself to negotiate. These significant issues must be addressed.

I have engaged in a brief discussion with Deputy Broughan and we have decided we are not prepared to allow this matter to rest. We will forward to our guests a list of questions we wish to pose in respect of the 2006 accounts, invoices we would like to see, the Koala site and the sale of property at Foynes between 2002 and 2004. When those issues have been dealt with, we can then move on. They must be dealt with in order that we might expose the rottenness that was at the heart of what occurred in Foynes.

Acting Chairman (Deputy Timmy Dooley)

I wish to give Mr. Keating an opportunity to tidy a couple of the outstanding issues.

Mr. Pat Keating

Providing us with a list of questions is probably the best thing to do. According to the legal advice we received, we are constrained in terms of the questions we are in a position to answer. That advice is clear. The Deputy should forward a written list of questions to us. If our legal advisers indicate we can answer such questions, we have no difficulty in doing so.

Deputy Fergus O’Dowd

If the information is not forthcoming, the committee will have a decision to make to require the company to answer those questions. If necessary, we can force it to do so by whatever due process exists. This committee is not a mere talking shop. It represents the Oireachtas which is the national Parliament and the rule of which must be paramount in respect of this matter.

Acting Chairman (Deputy Timmy Dooley)

On that note, I will bring the discussion to an end. I thank our guests for their time. I compliment and congratulate them on the work they are doing and wish them well in their endeavours.

Sitting suspended at 5.05 p.m. and resumed at 5.08 p.m.