Dáil Éireann Debate, Tuesday - 2 November 2021
2. Deputy Peadar Tóibín asked the Tánaiste and Minister for Enterprise, Trade and Employment when the corporate enforcement authority will replace the Office of Director of Corporate Enforcement, ODCE; and the exact powers that will be afforded to the authority. [52006/21]
Amharc ar fhreagraWhite-collar crime in this country has an enormous effect on how society functions. The inability to eradicate white-collar crime can skew and distort markets. There are many examples of white-collar crime and fraud being perpetrated in markets and businesses, meaning a significant number of victims who will suffer radically. There has been none of the necessary enforcement to date. When is the enforcement likely to happen?
Legislation to establish the new corporate enforcement authority is currently before the Houses. The Companies (Corporate Enforcement Authority) Bill 2021 was published on 3 September. Second and Committee Stages have been completed in the Dáil, and Report Stage is scheduled for 10 November. Operational arrangements for the transition to an agency continue to advance in parallel, with progress being overseen by a steering group of officials from the Department and the ODCE.
The Government's objective, with the support of the Houses, is to enact the legislation as soon as possible with a view to the establishment of the agency in January 2022.
The legislation, when enacted, will be a milestone in the area of corporate enforcement in Ireland. With new technology and more sophisticated economic crime, it is more important than ever to have a well-resourced, stand-alone agency to identify those not complying with company law. The Bill provides the corporate enforcement authority with more autonomy, particularly the ability to recruit those with the required skills and expertise. Having the autonomy to recruit those with specialist skills and expertise will be essential to ensuring the continued capacity of the authority to fulfil its mandate. The authority will have a structure similar to that of a commission, with a chairperson assisted by other members, who may have delegated responsibilities for other specific functions. The Bill provides for flexibility of up to three full-time members, including the chairperson. This is designed to enable the new authority to bring in expertise to meet the differing demands pertaining to its remit, and it will enhance the capacity of the authority to investigate multiple and more complex investigations in parallel.
The Bill invests the new authority with all the same functions and powers that the ODCE currently has, with some modifications to meet the differing demands of its remit, which includes investigation, prosecution, supervision and advocacy roles. These functions include encouraging compliance with the Companies Act 2014; investigation of suspected offences, including through the appointment of inspectors; criminal investigation and prosecution; and civil enforcement of the obligations, standards and procedures to which companies and their officers are subject under the 2014 Act. Furthermore, the Garda members of the new authority have, and will continue to have, all the powers of An Garda Síochána.
The ODCE has had a troubled existence, mostly because of the lack of resources it has received.
We spend so much time in this Chamber discussing legislation and fretting over wording or phrasing but it is usually the case that unless there is proper enforcement, the legislation is not worth the paper it is written on. There are many examples of businesses, and staff and employees especially, around the country that have suffered as a result of this issue.
The ODCE probably hit rock bottom when the trial of Seán FitzPatrick, the former chairman of Anglo Irish Bank, for allegedly misleading the bank's auditors fell apart. That was another example of an organisation that did not have the necessary resources. The Minister famously stated that this will be an Irish FBI for white-collar crime. When will it happen? When will the corporate enforcement authority be launched? How many staff will it have? What budget will it have? What exact independence will it have from the Department?
It will no longer be an office of the Department; it will be an independent agency under the remit of the Department. The new authority will have all the necessary human resources required, both civil servants and members of An Garda Síochána, to fulfil its mandate. The budget for the ODCE has been increased by 20% since 2018 and the Department has sanctioned 14 additional staff to be assigned to the new authority. The permanent complement of members of An Garda Síochána will increase from seven to 16 and the total headcount of the authority will increase by 50%. This is in line with the assessment by the current director of the staffing needs of the authority. I look forward to the enactment of the Bill before the Christmas recess and I would like to be in a position to sign the establishment order so that the body can come into being in January next year.
As regards the Anglo Irish Bank trials, it is important to point out that the investigation of the ODCE into Anglo Irish Bank comprised five separate investigations and resulted in four trials, all of which resulted in persons being convicted on indictment of criminal offences. It is accepted that there were investigative failures relating to DPP v. FitzPatrick, but I do not think they were entirely down to resource issues.
On a slightly left-field note, this country is also dealing with a big problem relating to commissions of investigation. For example, the NAMA investigation established in June 2017 was meant to be completed in 2018 but now has an extension until December 2021 at least. It has spent approximately €2.5 million but that figure is likely to reach approximately €10 million. There is also the Siteserv commission of investigation established in 2015. I recall the Government of the time was rocked by it in 2015. It had an estimated cost of €4 million but it is still rumbling on. I think it was the Minister himself who estimated it could top out at €30 million, while some analysts have said it could top out at approximately €70 million. It strikes me that there is a need for a permanent office of investigation rather than just creating ad hoc commissions for each crisis. Would it not be a reasonable proposition to build a fully resourced office for commissions of investigation into corporate misgovernance, fraud and crime in this area so that we do not have to deal with these never-ending investigations with unlimited budgets?
It is fair to say that when commissions of investigation were established and that legislation came through the House - I remember it well during my first or second Dáil term - the view at the time was that they would replace tribunals and would be much less costly. They have certainly been less costly but the view was that they would happen more quickly, which has not been the case. Frankly, there is a real difficulty in inquiring into any kind of commercial transaction because there will always be people who will argue that a better result or price might have been secured for something had it been sold to someone else or done sooner or later and that is very difficult to prove. I hope this new stand-alone agency will reduce the need for commissions of investigation, at least in the context of issues of company law. It does beg the question of why, if there was evidence of criminal activity in connection with those matters that are now being considered by the commission of investigation, they were not investigated by the ODCE or the Garda rather than a commission of investigation.
