#Repeal the 8th - Dáil votes for the Violation of Women's Human Rights to continue...

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Parent Category: Dail Work

Category: Health

Created: 08 July 2016

Yesterday, the Dail voted against the Fatal Foetal Abnormalities Bill, 95 votes to 45. That so many members of our Parliament are out of touch with the People of Ireland, does not speak well for politics. Pressure from right wing religious forces should not be underestimated,  but the refusal to address the stark reality, that we are violating the Human Rights of Women, and intend to continue doing so is very disheartening. Credit to Sinn Fein and Independents who supported the Bill, credit to the 5 Fianna Fáil members - Niall Collins, Timmy Dooley, Robert Troy, Lisa Chambers and Fiona O'Loughlin, and credit to Ind Alliance trio Shane Ross, John Halligan and Finian McGrath, who showed more courage in Government than Labour ever did - A Labour Party who couldn't even support the Bill yesterday - what do they stand for anymore? 

 Here's my speech in the Dail, on the Bill last week  -

 "The parameters of the Bill are extremely narrow. We seek to legislate to allow abortion in cases where two specialist medical practitioners - an obstetrician and a perinatologist - have deemed a foetus to be incompatible with life. We are not talking about life-limiting illnesses or disabilities, but foetuses which are incompatible with life. In June 2013, there was letter in The Irish Times from a group of 43 lawyers and law lecturers, who set out that it was entirely possible to legislate for fatal foetal abnormality without changing the Constitution. According to the group:

It is possible to interpret Article 40.3.3° so that the “unborn” that is protected therein does not include those foetuses with fatal abnormalities. The Irish courts have not considered this legal issue and there is no binding precedent excluding such an interpretation.

Ireland is just one of two EU member states that do not allow for legal terminations in cases of fatal foetal abnormality. The fact that the question of allowing for abortion in such cases has never been assessed by the Irish courts means women are, by law, required to carry to term, and give birth to, a foetus which will never be born alive.

  The question of constitutionality has been raised by many Government Deputies in regard to the Bill, and the opinion of the Attorney General in this regard was trotted out as an excuse for Government Deputies to vote against Deputy Clare Daly’s Bill last year. There are two very serious problems with this. The first is that the opinion was never published, and we have never had a chance to assess or debate it. The second is that it is only an opinion. Only the courts can find something to be constitutional or not. If constitutionality is the only reason Deputies have for refusing to back this Bill, they should allow it to be assessed in the appropriate manner, by the courts. If the courts find it is unconstitutional, we will be in the same situation as we are now.

  We, too, have sought legal opinion and I have been told that for Government Members to keep repeating that the Bill is unconstitutional is highly inappropriate. Under the separation of powers doctrine, which is enshrined within the Constitution and forms the backbone of our democracy, only the courts can interpret legislation. Article 15 provides that only the Oireachtas has the power to make laws and Article 28 sets out that executive power can be exercised only through the Government. Each of the three bodies has sole independence and power in its own sphere and cannot encroach into the sphere of any other. This system of checks and balances, this separation of powers, is supposed to mean no one body is too powerful and it prevents over concentration of power in the hands of one body.

  It is all the more inappropriate if it can be shown that the legal advice the Government is relying on from the Attorney General's office, that our Bill is unconstitutional, does not relate specifically to our Bill and is outdated and, possibly, obsolete if it was provided in 2010. Under Article 15, the Oireachtas cannot pass laws that are “repugnant” to the Constitution. However, given the disagreement among legal academics and barristers on whether fatal foetal abnormalities can be legislated for, the question of constitutionality is at the very least arguable, and the Bill cannot be said to be repugnant to the Constitution, which would be a piece of legislation that is clearly and undeniably unconstitutional.

  The Constitution has been referred to many times by judges and academics as a "living, breathing document". It is intended that judges have the power to interpret the meaning of the Constitution to reflect the society of the day. Society has changed considerably since 1937, and indeed since the eighth amendment was introduced in 1983. It is time we gave the Constitution a chance to catch up.

  The recent examination of the Amanda Mellet case by the UN Human Rights Committee, UNHRC, was the first time any international court or human rights body has found that the criminalisation of abortion is, in itself, a violation of human rights. The UNHRC found that even though the State did not directly inflict harm on Amanda Mellet, its neglect and abandonment of women in this situation, who are left “isolated and defenceless”, moves situations like hers out of the realm of guiltless tragedy and into the responsibility of the State. In forcing her to travel, depriving her of material and emotional support and appropriate care during and after the abortion, the Irish State added to the heartbreak of carrying an unviable pregnancy, violating her right to "protection from cruel, inhuman and degrading treatment" detailed in Article 7 of the International Covenant on Civil and Political Rights, ICCPR. The State also violated her rights to privacy and bodily integrity under Article 17 of the ICCPR. According to the committee, “requiring the author to carry a fatally impaired pregnancy to term only underscores the extent to which the State party has prioritised ... the reproductive role of women as mothers, and exposes its claimed justification in this context as a reductio ad absurdum".

  The committee found that the State discriminated against Amanda Mellet both as a woman and on socio-economic grounds. According to Sarah Cleveland, a member of the UNHRC, the criminalisation of abortion amounts to gender discrimination, because it affects a health service that only women need and places no equivalent burden on men. Women who choose to carry an unviable pregnancy to term and deliver a stillborn child receive State-funded care, whereas those would-be criminals who choose to travel for the termination of their already unviable foetus must bear the cost themselves and forgo any aftercare. Tough luck if you cannot afford it.

  According to the London-based Abortion Support Network, the economic crisis has made the process of accessing abortions even harder for poorer women. Deputies who hide behind the eighth amendment as an excuse to vote against the Bill, and who then refuse to call for the repeal of the amendment, are shamelessly upholding a system which violates the rights of women specifically, treating them as second-class citizens, completely denying their bodily integrity and regarding them as no more than human incubators. It is the Government’s neglect of its responsibility to protect the human rights of its citizens, as highlighted by the United Nations, which allows for this truly appalling situation to continue.

  The Minister for Health, Deputy Simon Harris, has said he read the UN committee’s report, stating that he found “the experience this woman had, deeply upsetting". He said he had met with families who have been through the trauma of knowing their baby will not survive and had been very moved by hearing of their experiences. He said he wanted the issue to be addressed. I hope he will put his words into action. Although the finding of the UNHRC is not technically binding on Ireland, in line with our obligations under international law, in particular the ICCPR, we are obliged to act on it in good faith to implement the findings of the committee. International law requires the State to provide a remedy and prevent a repetition.

  Every day, ten to 12 women and girls leave Ireland to access safe and legal abortions, because if they did so here, they could face up to 14 years in prison. The Irish Family Planning Association found that between January 1980 and December 2015, over 166,000 women and girls travelled from the Republic of Ireland to access abortion services in another country. Ruth Fletcher, senior lecturer in law at Queen Mary University London, holds that restricting access to abortion does not stop abortion; it just makes the experience more harmful. According to Ruth Fletcher:

If Irish society is serious about reducing harm to pregnant women, including the harms of disrespecting their autonomy and bodily integrity, the State needs to change how it thinks about pregnancy and abortion. The recognition of woman and foetus as legal equals has been harmful, and needs to change.

People disagree about abortion and have different views on when life begins. While people are entitled to their beliefs, they should not be entitled to shove their beliefs down the necks of others, especially when it amounts to a violation of their human rights."

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NAMA Scandal - The Plot Thickens...

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Parent Category: Dail Work

Category: Finance

Created: 01 July 2016

NAMA Scandal - The Plot Thickens...

Dáil Diary no 10 - 1st July 2016

My Private Members Motion calling for a Commission of Investigation into the sale of Project Eagle was defeated yesterday, despite the fact that the Government do not have a majority, it is truly shocking just how many voted, so that we ignore all the allegations of malpractice linked to NAMA. - Shocking that Fianna Fail , who had agreed to support our motion, decided to do a U turn, shocking that Labour are happy to ignore the goings on in NAMA, shocking that some Independents, who spoke strongly against the lack of transparency and accountability in NAMA only months ago, are now happy to turn a blond eye. Is it any wonder that the Irish people are so cynical about Politics and Politicians? Not yet, not now, but the Truth will eventually out...

“The sale of Project Eagle by NAMA to Cerberus for £1.241 billion was, at the time, the largest ever property deal to take place on the island of Ireland. It was also the first time that NAMA packaged up a loan book to sell in its entirety - 850 loans to be precise. Project Eagle is now under investigation in two different jurisdictions. The Securities and Exchange Commission in America is investigating it and so is the National Crime Agency in Britain. Repeated claims by the Taoiseach and the Minister for Finance, Deputy Michael Noonan, that allegations of wrongdoing have not been directed at NAMA are not true. I have alleged wrongdoing by the two former NAMA employees, Frank Cushnahan and Ronnie Hanna, in their role in the sale of Project Eagle. Both men have now been arrested by the NCA in Northern Ireland. The Minister said last week that all known allegations are being investigated by the appropriate authorities, but I do not agree. Ronnie Hanna worked for NAMA in Dublin as head of asset recovery. He is currently on bail in Northern Ireland on fraud offences relating to Project Eagle. The man who held one of the most powerful positions in NAMA for over four years has been arrested, is on police bail and has to come back to answer further questions. A file has been prepared for the Director of Public Prosecutions, DPP, and this Government has not batted an eyelid. NAMA is ours. Its assets belong to the people and they bear every euro of loss that it incurs. The people pay its salaries. They paid for Frank Cushnahan and Ronnie Hanna's salary. Unfortunately, it appears that others were paying them too. We owe it to the people at least to investigate whether there is any material indication of wrongdoing. Every other country that was tangentially involved in Project Eagle has seen the same indication and has opened an investigation. Only Ireland, to its shame, has not. With every passing day, the Government is losing credibility.

  Project Eagle cannot be split into two separate transactions no matter how NAMA attempts to distance itself from the deal. I am hopeful the ongoing investigations by the Securities and Exchange Commission and the NCA will help to shed light on the deal. Neither is investigating the specific role played by NAMA in this deal. NAMA is a sideshow to them because they are only concerned with offences committed in their jurisdictions.

  NAMA has repeatedly misled anyone who will listen to it when answering questions on its role in Project Eagle. I will give some examples. I was told by NAMA in response to a written question that Ronnie Hanna, David Watters and Frank Cushnahan never met any prospective purchaser of that portfolio, which is not true. I have had it confirmed by the chief executive of one of the bidders. Frank Daly stated that in his role on the Northern Ireland Advisory Committee, Frank Cushnahan was not involved in any decision-making and did not have access to confidential data. If so, why, after Frank Cushnahan resigned in 2013, did NAMA insist that he confirmed that all his confidential files at Tughans had been destroyed? Brian Rowntree, who was also on the Northern Ireland Advisory Committee, contradicts NAMA on this, stating that it was privy to confidential information. In his reply to NAMA, Frank Cushnahan said, "I am returning herewith as requested the enclosed letter confirming that all documentation has been securely disposed of." What in God's name would he be disposing of if there was nothing to dispose of? Why was he entitled to £5 million if he had no confidential information? It does not stack up.

  Frank Cushnahan had confidential information on borrowers. NAMA said he did not have confidential information on the sales process. The sales process was not so relevant but he had enough inside information for it to be worth an awful lot of money. NAMA said the Northern Ireland property market was not looking good in January 2014 and that it believed the best approach was a sale of the entire loan book. I will read some extracts from CBRE, Savills and Lisney. A CBRE report on 28 January 2014 on the Northern Irish commercial property market said of 2013, that:

Last year marked a major turning point for the commercial property market in Northern Ireland with the first tentative signs of recovery emerging in the second half of the year. The most notable trend was an increase in activity in the investment sector as the process of deleveraging kicked off in Northern Ireland in the last six months of 2013. There was strong demand from both institutional and local buyers for the assets that came available for sale.

A Savills report in January 2014 said:

2013 marked the beginning of a new cycle in the Northern Irish market. NI is mirroring the general UK macroeconomic performance which has now returned three consecutive quarters of economic growth.

In a similar vein, Declan Flynn, the managing director of Lisney in Belfast, said, "Our 2013 research has highlighted that Property Investment transactions in Northern Ireland have increased six fold over the last two years." The notion that things were bad is wrong. Things were not wonderful but they had improved dramatically. They say that commercial property only increased in value between 2% and 3% in 2014. That is a real giveaway because it means Cerberus will come close to doubling its money on its purchase. It means they bought very low in the market because it got Project Eagle for nearly half of what it was worth. Why are we not concerned about that? NAMA will continue to get away with all these contradictions and more until an independent commission of investigation, with the ability to demand all the relevant documentary information regardless of commercial sensitivity, is initiated.

  Another important question that a commission of investigation would examine is whether the Project Eagle bidding process was competitive. When asked this question, NAMA has always passed the buck and referred back to its sale adviser Lazard, which stated there was sufficient competitive tension between Cerberus and Fortress to continue the bidding process. What evidence was provided at the time to show competitive tension still existed? I have spoken to a senior executive in Fortress who confirmed there was no competitive tension. He said that the lack of tension was horrifically uncompetitive. They were his words. Cerberus bid £1.241 billion. The reserve price was £1.24 billion. Fortress bid £1.1 billion. Let us not get into the argument of whether it knew the reserve price and whether it wanted to get back into the process or not. It was not a competitive tendering process by any stretch of the imagination. It does not stack up. Fortress had to write to the Department of the Taoiseach to gain entry to the sales process. Cerberus met NAMA's head of asset recovery, Ronnie Hanna, the day before the bid was accepted. What was discussed at this meeting? Can we see the minutes? NAMA will not give them to us but a commission of investigation would compel it to reveal the truth. I have requested under freedom of information from NAMA all e-mails and other correspondence between NAMA and Lazard on the sales purchase of Project Eagle. It will be interesting to see if NAMA will release this information or hide behind the excuse of commercial sensitivity. This is information that a commission of investigation could demand. 

NAMA's legal advisers on the transaction were a London firm, Hogan Lovells, which it paid £1.8 million. It would be interesting to see all the legal advice given to NAMA by this firm regarding the sale. I wonder if it was aware of the STG£5 million fee for Frank Cushnahan that PIMCO was set to pay and just what did Hogan Lovells do for that STG£1.8 million? It is nice money if one can get it. I have also requested from NAMA, under freedom of information, all e-mails and any other correspondence between NAMA and Hogan Lovells on the sale-purchase of Project Eagle.

The Government has referred to the long-awaited report of the Comptroller and Auditor General on Project Eagle. This report will examine whether NAMA achieved the best possible return for the taxpayer in the sale of Project Eagle. It will not be examining the governance of NAMA in regard to the deal and whether it was executed in a fully legal and transparent manner. It will not be investigating the role played by the former NAMA employees, Frank Cushnahan and Ronnie Hanna.

In a written reply to me on 28 October 2015, NAMA stated that "Ronnie Hanna was a senior executive who joined NAMA in 2010 who acted professionally and diligently during his time at NAMA." This is the same Ronnie Hanna who is currently on bail in Northern Ireland for fraud offences relating to his role in Project Eagle. NAMA threw Frank Cushnahan under the bus when it had no other option but it cannot do the same to a man who held the role of head of asset recovery for four years in the agency.

From figures available it appears there was an enforcement rate of between 7% and 8% against NAMA's borrowers in Northern Ireland compared to a 27% rate for NAMA borrowers in the Republic of Ireland. Why does the Minister think that a NAMA client down South was nearly four times more likely to be foreclosed upon? Why did NAMA treat business people in the Republic of Ireland almost four times less favourably than those in Northern Ireland? Is it possible that Frank Cushnahan or Ronnie Hanna might have had anything to do with that?

The sale and purchase of Project Eagle by NAMA to Cerberus involved some of the biggest players in this country, both North and South as well as the United States, as many of these players have a vested interest in ensuring that a commission of investigation never takes place. Those involved in the deal include Cerberus, PIMCO, Fortress, Brown Rudnick, Tughans, Lazard, Hogan Lovells, A&L Goodbody, Linklaters, the Northern Ireland Law Society, the Northern Ireland Department of Finance, the Office of the First Minister of Northern Ireland, the Department of An Taoiseach and the Department of Finance, not to mention the many property developers who were involved in this whole process.

I would like to know why Fianna Fáil changed its mind on seeking a commission of investigation. I find that incredibly interesting. Has some sort of deal has been done with the Government or did some of these large powerful bodies get to it. I would love to know. If this Government refuses to initiate an investigation into Project Eagle, we will never uncover the true role played by NAMA in the sale of Project Eagle. If the Government refuses to initiate an investigation into Project Eagle, how can we be certain that similar loan sales which followed Project Eagle, such as Project Arrow to Cerberus, were conducted in a legal and transparent manner? Unless a commission of investigation is initiated, all work by Ronnie Hanna in his four years of head of asset recovery in NAMA will forever be under scrutiny.

To return to Fianna Fáil, I cannot believe it has changed its position on this matter. Anyone who reads its amendment will see its excuse for not seeking a commission of investigation. It is saying now that it wants all investigations completed before we have one. First, NAMA is not being investigated by anyone at the moment. Second, the National Crime Agency, NCA, in Northern Ireland or the Securities and Exchange Commission in America are in different in jurisdictions. If we had a commission of investigation it would not interfere one iota with theirs.

On 21 October 2015, Deputy Michael McGrath stated: "I am more convinced than ever that a full commission of investigation into Project Eagle is required." He further stated: "The committee [the Committee of Public Accounts] cannot get to the bottom of this issue because they can only go so far. A full statutory commission of investigation with extensive powers is required." He also stated: "The Government is hiding behind the Comptroller and Auditor General's value for money review of Project Eagle, the purpose of which is to ascertain whether the transaction delivered value for money."

I have checked the legal advice side and I am told that all investigations will not be complete for at least three years. Are we going to postpone doing anything about what is going on in Dublin for three years? Is this serving the Irish public and Irish taxpayers properly? There are huge concerns around what is going on? The Minister is not going to make them go away without a commission of investigation. I got legal advice on this and part of it states that the only criminal proceedings that are currently under way are in a different legal and territorial jurisdiction under UK law and deal even with a different subject matter. It also states the investigation of a commission in the Republic would focus on NAMA activity and any failure to act in the public interest of the Republic's citizens and any failure by NAMA to comply with its duties; the extent of involvement and awareness; and any failure in supervision or oversight by the Department of Finance and the Minister for Finance in the Republic. It further states this is a wholly different perspective and subject matter than the focus of the investigation in the North and, as such, is much too far removed to pose any real risk of endangering these criminal proceedings.

The Fianna Fáil amendment to the motion is explicit in this regard and notes that: "NAMA have advised that the UK NCA has confirmed that no aspect of the Agency's activities are under investigation". There is very little risk of an overlap and there are no solid grounds for Fianna Fáil attempting to hide behind this argument as justification for its support of the Government position that no commission of investigation is necessary despite the admission in Fianna Fáil's amendment that there are ongoing and legitimate concerns regarding aspects of the sale by NAMA of the Northern Ireland loan portfolio, Project Eagle.

It stinks to high heaven. I believe 100% that the Minister believes that as well.

Before he left the Chamber, the Minister for Finance, Deputy Michael Noonan, said if I had any allegations, I should make them without using Dáil privilege.

With regard to the two gentlemen who were arrested a few weeks ago, the former employees of NAMA who worked for it in Dublin, I have mentioned them several times outside this House. The Minister spoke about going to the relevant authorities. I have gone to the Garda on a number of occasions and to the National Crime Agency. I have not been hiding behind the door. The Minister said it is unreasonable to talk of par value. It is not unreasonable to talk of par value. No one expects us to get par value but if I hear NAMA say once more that it will make a profit, I will to vomit. The par value was €74.8 billion and it is going to get about €34 billion. The Irish taxpayer does not want to hear that it is making a profit because we are out about €40 billion. We were told NAMA was invented in order to put these assets into cold storage until there was recovery. What did we do? We could not offload them quick enough and we could not offload Project Eagle quick enough. Does the Minister of State know how much competitive tension there was in that bid when there was no one left but Cerberus and Fortress? There was zero competitive tension.

  Fianna Fáil Members mentioned that my motion should have been clearer and more specific. I specifically went as close to their motion of October 2015 as possible because I wanted to keep them on board. I could have included much more in the motion. I went as close as I possibly could to Fianna Fáil to give it no reason for coming out of it, yet they have done so.

  The three speakers from Fianna Fáil made some very good points today but they are totally inconsistent with their position of not having a commission of investigation now. It will not interfere in any way with what the NCA and the Securities and Exchange Commission in the United States are doing. The legal opinion provided to me makes the point that if at any stage during the commission's lifetime the Director of Public Prosecutions decides to institute criminal proceedings, and in the unlikely event that the Director of Public Prosecutions believes there was a conflict and that the commission's activities might endanger those criminal proceedings, it would be open to the Director of Public Prosecutions to write to the commission and set out her concerns regarding how matters should proceed, but this very unlikely potential eventuality is not adequate reason for the Oireachtas and the Government to shirk their duty in establishing a commission to begin a thorough investigation.

  The Minister for Finance, Deputy Michael Noonan, referred to the independence of NAMA but he had no problem interfering with NAMA in May 2010, March 2012 and July 2015, when it suited him. The truth be told, the Minister has the power to tell NAMA what to do in all areas, so long as the direction or order under section 14 is to do with achieving the purposes of the Act, which are set out in section 2. He could tell NAMA to do anything in this context. He could even have told it to honour a social mandate, which was in the small print. However, he chose not to. He chose to do whatever he liked. He has not wanted to hold NAMA to account. He is happy with its commercial mandate and happy we have taken a completely neoliberal position. We have sold assets for half what it cost to build them. We have sold the assets in Project Eagle to Cerberus for a song. It is going to make a fortune on it, yet the Minister is trying to tell us we got the best possible return. If we got the best possible return, Cerberus could not be making a fraction of what it is going to make on it. It does not stack up. It is rubbish.

  No one would be well having contemplated what is happening here. We have put a lot into this in trying to get the truth out. There is nothing I have said in here or outside this Chamber that has been proved to be wrong. I want the Minister of State, Deputy Eoghan Murphy, to try to contradict that because it is not true. I have not told one lie in here or outside the Chamber.

  This is not going away. If it is the last thing I do, I am going to get to the truth of this and I am going to expose what has gone on. We are setting up an organisation called namaleaks.ie. We have got help from the people who fixed up Snowden, The Intercept, and we are going to invite members of the public to come forward with information where they feel they have been badly treated by NAMA, banks or investment funds. We are inviting insiders with information, who will have 100% confidentiality, to send us documents that are truthful in order to address this rottenness that exists in how we do business in this country and how they do business in Northern Ireland. They are no worse up there than we are down here, there is a pair of us in it. Our credibility at international level is going to suffer unless the Government has the gumption and the balls to actually go after the truth, because it is not showing any. I am gutted that Fianna Fáil is not showing it either.”

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NAMA- Why don't Fine Gael and Fianna Fáil want to hold NAMA to account? Government burying their head in the sand...

Details

Category: Dail Work

Created: 10 June 2016

Dáil Diary no 9 - 10th June 2016

NAMA- Why don't Fine Gael and Fianna Fáil want to hold NAMA to account? Government burying their head in the sand...

Here's my speech during the Single Resolution Board Bill 2016 yesterday in the Dáil, with new Minister of State, Eoghan Murphy -

"The European Central Bank and European Union have inflicted a huge injustice on Ireland. Sadly, the Minister for Finance now wishes to compound it by getting Ireland to co-operate with the single resolution board, which wishes to continue the current practice of regulating banks even though it is aware that banks are hiding losses from the regulator. Patrick Honohan has confirmed at various times that banks have hidden losses and also confirmed that it is difficult for regulators to ensure that banks are safe.

It now is well recognised that the ECB was a major contributor to Ireland's banking crisis. In 2001, the ECB knew that banks were about to start hiding losses yet it simply stood aside to please bonus-hungry bankers, allowing them to amass substantial bonuses while destroying economies like Greece and Ireland. Members should not allow this to continue. In 2001, the ECB was aware that banks were going to hide losses but did nothing about it. It stated: "This approach would allow two criticisms associated with the current accounting standards to be overcome, notably that potential credit losses remain hidden until signs of deterioration are evident and that market participants have insufficient information about the interest rate risk profile of banks." In 2006, the ECB reconfirmed that the amortised cost system of accounting allowed banks to delay the recognition of losses. It stated "given that these assets could be accounted for at amortised cost – the actual recognition of a loss or an impairment of the assets may take longer to materialise". In 2001, the ECB and the European Union received warnings from a consortium of French banks and bank regulators that carnage would result. Does the Minister of State agree with the local authority pension fund in London which stated that financial statements of banks and their regulation must be comprehensively reviewed?

Its report stated:

The forum’s analysis as set out in this publication leads to some radical conclusions, not least the need for a comprehensive review of financial reporting where we believe there are significant deficiencies. Yet, in reaching this view, we are driven solely by a desire to understand how major financial institutions appeared, on paper, to be solvent at one moment, only to require enormous taxpayer support at the next, just to survive.

Mr. Michael Buckley, a former chief executive of AIB, told the banking inquiry that 99% of bankers knew that the practice of hiding losses would cause difficulty. Mr. Buckley is not alone in this view. Bank of Ireland also knew that the rules were a disaster. Its former group chief financial officer, John O'Donovan, stated:

Once the EU adopted IFRS and by extension IAS 39, Bank of Ireland had no choice, as a listed entity, but to apply the new standard. Bank of Ireland understood the pro cyclical nature of loan loss provisioning under IAS 39, was not entirely comfortable with its outcomes but there was nothing the Regulator/Central Bank or indeed the Court or management of Bank of Ireland could do to change what had been adopted by the EU.

The list of those criticising banks for hiding losses is never-ending. Even the Chartered Accountants Regulatory Board confirmed that its members were hiding losses and, therefore, not showing the financial position correctly.

In April, I tabled a question to the Minister for Finance asking for his views on claims by the Chartered Accountants Regulatory Board that accounting standard IAS 39 forces banks to portray an inaccurate financial position. I further asked for his views on his assurances provided in the reply to Parliamentary Question No. 185 of 14 February that banks had not systematically overvalued loans in their published accounts, which could be misleading. I asked the Minister to make a statement on the matter. He replied:

I have answered a number of Parliamentary Questions in the past in relation to rules adopted by banks when valuing assets including loans. These rules are determined by the relevant accounting standards and it is the responsibility of the directors of the respective banks to ensure these rules have been properly applied. To provide assurance that this is the case, the proper application of the rules is subject to an annual independent external audit review.

As I have stated in the past, nothing has been brought to my attention to suggest that these rules have not been correctly applied by the banks.

In February 2014, when Deputy Pearse Doherty asked the Minister for Finance if the Central Bank had ever investigated any bank in the State for hiding losses in its accounts, Deputy Noonan replied: "I have been advised by the Central Bank that the Bank is not in a position to provide me with a response to this question." It is not very satisfactory.

I believe that these statements, along with the Single Resolution Board, are an attempt to protect the bonuses of destructive bankers who have caused such huge losses to the Irish economy. I also have a legal opinion confirming that the practice of hiding losses is a potential criminal offence. I believe that by making misleading statements, the Minister is representing the interests of bankers and their lobby groups.

Speaking of criminal offences, I have just written to the Central Bank to report possible criminal offences under the Market Abuse (Regulations) 2005 by the former NAMA committee member Frank Cushnahan and former NAMA executive officer Ronnie Hanna. Both men were arrested in Northern Ireland last week.

The NAMA code of conduct-----

Acting Chairman (Deputy Thomas P. Broughan): 　 　 The Deputy should not have mentioned individuals there.

Deputy Mick Wallace: 　 　 Sorry. The NAMA code of conduct for both committee members and officers states

... members may potentially have access from time to time to “inside” or “confidential” information regarding financial instruments and the issuers of such instruments. As such, Committee members-----

Acting Chairman (Deputy Thomas P. Broughan): 　 　 I just want to check. The Deputy mentioned individuals; is he stating that they committed a criminal offence?

Deputy Mick Wallace: 　 　 No, I am just saying they were arrested. That is a fact.

Acting Chairman (Deputy Thomas P. Broughan): 　 　 Yes.

Deputy Mick Wallace: 　 　 It goes on to say:

As such, Committee members should be aware that it is a criminal offence for a person who is in possession of “inside information” to:

(a) deal or try to deal the financial instruments concerned or their related derivative instruments;

(b) disclose inside information to any other person; or

(c) recommend or induce another person to deal in such financial instrument.

We do not have a very good record of holding banks to account. Not only did we rescue them when they collapsed, but we have not been able to tell them what to do since. If I had a site today that I owned fully and I had planning permission for 30 houses on it, I would not get money - and neither would anyone of my size, for that matter - to build on the site. The pillar banks are not lending, and that is one of the problems we have in the delivery of housing.

The Government argues, and I have often heard it argued here, that the State should not be interfering with private businesses such as banks. First of all, I do not agree with that and, second, AIB is State-owned. The idea that a state has no control over or does not hold to account private institutions that work within that state does not stack up. It really does not make any sense.

I will not name the individuals again, but the gentlemen I referred to both worked for NAMA. Is anyone even remotely concerned about the fact that they have been arrested by the National Crime Agency? The notion that these guys were only involved on the sale side has just been blown out of the water. The National Crime Agency is not investigating the sale side; it is looking at the purchase side of Project Eagle.

We have the same attitude to NAMA as we have to the banks. It is as if we do not want to know, and they can do what they like. This is incredible. I guarantee that, in time, this is going to fall down around their ears. I have not said anything close to the full amount of information as we have around this whole area because I have been short of paper proof sometimes. I can tell the Minister of State, however, that the way NAMA operated left a lot to be desired, and it will be proven in time. The fact that it has nothing to say about the fact that the two gentlemen were arrested last week is mind-boggling. Why is the Government not asking them to come to the House and explain why this happened? Am I missing something? It just does not stack up. I do not know what way the Minister of State sees it. Over the last year, I have brought NAMA up eight times on Leaders' Questions and, every time, NAMA spokespersons came out and contradicted most of what I said. They said I was not being accurate, even thought I was. Most of what I said has been borne out slowly. This time they have nothing to say, which is very interesting. How can they defend the role that these two gentlemen played in this transaction?

Last autumn, I asked NAMA how it could still engage with Cerberus on Project Arrow, given the fact that it is part of a criminal investigation in the North by the National Crime Agency and is being investigated in America by the Securities and Exchange Commission. How can it still deal with that organisation? Does the Minister of State know what NAMA said back to me? "As far as we are concerned, we have no evidence that Cerberus are being investigated under any criminal charges."

Last week, when the National Crime Agency arrested our two friends, it said this was part of a fraud investigation. The last time I checked, a fraud investigation has a strong connection to criminal activity. Am I right?

I am getting my interpretations or words wrong if that is not true. It said that this is a fraud investigation. What will the Irish Government do about it? Is it going to wait? Nobody might be charged for 12 months and if it was in the South, it could be even 18 months. Are we going to stand idly by and wait that length of time? I am not saying that we shoot the two individuals but it is about time we checked things out. Has it bothered the Government that enforcement against Northern Ireland borrowers who were in Project Eagle was less than 30% of the enforcement against Republic of Ireland borrowers? How is it that Republic of Ireland based borrowers appear to have been far more aggressively treated than those in Northern Ireland?

I am sure most Members saw the last "Spotlight" programme in which Frank Cushnahan said to Mr. Miskelly that only for Ronnie the lights would have been put out. Does it not bother anybody that he said that? Maybe he made it up. I doubt it but maybe he did. I am not saying it is a fact, even though I have good reason to believe it is. However, why do we not investigate it? Do we not want to know exactly what happened? This speculation surrounding the work of NAMA will not go away. There will be speculation about how NAMA has operated until kingdom come unless it is investigated. NAMA does not have to be accountable for what it does. Its representatives were able to appear before the Committee of Public Accounts in July and October 2015 and say what they wished. That is no disrespect to any member of that committee. I am not saying that if I had been a member of it I would have been able to hold them to account. I would not. It is not a body that can hold them to account. They can say what they wish and we cannot prove them wrong unless we hold an investigation. To date, however, we have not wished to conduct one. Will that remain the case?

During his employment at NAMA as head of asset recovery, how many connections did Mr. Hanna approve enforcement against? If it has been found that he has not behaved quite how he should have, it has huge repercussions for all of the transactions in which he was involved with NAMA. It is important that we look at this sooner rather than later. If Cerberus is found to have behaved badly in Project Eagle, what will happen to all of the deals Cerberus has done in the South? It has bought more than €20 billion par value worth of assets on the island of Ireland. There is huge activity with it either looking for its money, selling on assets, trying to sell loans and so forth. Will all of this stack up? Will it unravel if Cerberus is found to have behaved badly? I believe it will. We will save ourselves a great deal of hassle by starting early rather than late. Kicking this can down the road will cost the State a lot of money. I suggest that we establish a commission of investigation sooner rather than later. The Government should initiate it and should not wait until more pegs fall and it all becomes overbearing. Why not start now and do the State a favour? If this is allowed to drag on until somebody is charged, many things will happen in the meantime. NAMA is already considering selling Project Ruby, Project Emerald and Project Abbey. If Cerberus buys more of these, the problem will be amplified if it is found that it has not behaved well.

Given the way everybody was carrying on, it was as if Cerberus was always going to get away with this and that NAMA was always going to get away with whatever it did and would never be held to account.

Acting Chairman (Deputy Thomas P. Broughan): 　 　 Deputy, you have mentioned an investigation in the neighbouring jurisdiction. I ask you to be conscious of the ability to conduct that investigation in your comments. I realise you are making general comments.

Deputy Mick Wallace: 　 　 Thank you, Acting Chairman. I accept your guidance. I checked this out with a legal individual in Dublin who assured me that what takes place in that jurisdiction is legally disconnected from what happens in this one from that point of view. There is no problem there. I have been interviewed by the National Crime Agency at length on two occasions, in August 2015 and in March 2016, and I can assure the House that it is not hearing anything new today. Trust me on that. I am very hopeful that the National Crime Agency will deal with this affair in the manner in which it should. I am confident that it seeks the truth and I will continue to believe that until proven otherwise.

My appeal today is that the Government take action. There is more bad news coming down the tracks for NAMA. It will get a great deal worse before it gets better. The Government should act now. This has been ongoing for more than a year and the Government has stonewalled most of what I have said in this Chamber. I have asked so many questions it is not funny but I do not believe I received one answer from the Taoiseach or the former Tánaiste on NAMA. I got some answers from NAMA. I know now that some of them, to put it politely, are seriously inaccurate and will prove to be so. This matter will not go away.

I am not seeking to be sensational. I could mention another dozen names of whom the Minister has not heard but I will not do it. However, I will quote from a letter that Cerberus sent to the First Minister, Mr. Peter Robinson, one week before closing the deal on Project Eagle. It outlines the nice cosy relationship it was offering: "Cerberus will release personal and corporate guarantees as a key part of consensual workout plans with cooperative borrowers." The related to when it would take over Project Eagle. It was quite confident it was going to get it because it was not a competitive process. It was the only body in the game. The letter continues:

Cerberus' underwriting of the Loan Books has not, to date, included the value of any assets other than the direct collateral assets securing the loans, and as mentioned above we would be willing to waive guarantees for cooperative borrowers who agree to execute a consensual workout plan. Assuming the applicable borrowers cooperate in good faith in connection with such a workout plan and their agreement regarding a consensual restructuring transaction, any and all contingent liabilities and or personal guarantees from the Borrowers would then be released in accordance with the terms of the plan. Consequently, only the assets which are the principal subject or collateral for the underlying debt would be retained as security. The existing guarantees would be released so they would no longer be an impediment to borrowers or grantors from undertaking new business ventures.

It would have been lovely if the Irish people who ended up with Cerberus had received that offer. A different game has been played out in the North. What happened there is that a deal was done in advance behind closed doors.

When Cerberus paid 27 pence in the pound for Project Eagle, with the other 73 pence being picked up by the Irish people in the South, it knew what it would get for the assets because the whole thing was sorted well in advance. It stinks to high heaven. It could offer a cosy deal like this because it was not a competitive process. It had people working for it in Dublin and the North to make sure this was one of the great deals of all time. That is a fact

."

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Policing Crisis - Minister for Justice refuses to hold Garda Commissioner to account. What chance reform?

Details

Parent Category: Dail Work

Category: Justice

Created: 28 May 2016

The Minister, in that press statement, also refers to "an unprecedented programme of Garda reform" and the eventual introduction of the Policing Authority has been lauded as an example of this, despite the fact that the Government rubbished the need for such a body when we introduced a Private Members' Bill to establish an independent police board a year previously. The Minister states that she is forwarding a copy of the report to the Policing Authority and the authority has released a press statement stating that it "expects that matters which are within its oversight remit will be discussed further with the Garda Commissioner and her senior team in the Authority's ongoing engagement with the Garda Síochána".

The final legislation which established the current Policing Authority represents a significant row-back on what was originally promised by the Government in the wake of the Garda controversies and in their own heads of a Bill published in November 2014. The Policing Authority we now have is a much weaker version than its counterpart in the North or the board we envisaged in our 37-page Bill. Significantly, there is no role at all for the authority in Garda discipline, particularly in respect of Garda discipline and underperformance at management levels and senior rank. How can the authority be expected to oversee anything relating to the report of the O'Higgins commission when the Government's legislation did not give it the power to supervise or discipline, as recommended by other groups and as per the functions of the Northern Ireland Policing Board? Both of these issues - Garda indiscipline and underperformance at management levels and senior rank - were identified by both the Guerin report and the Garda Inspectorate report in November 2015 as fundamental issues within An Garda Síochána requiring urgent action.

The conclusions of the O'Higgins report reconfirmed these two fundamentals along with the other serious issues detailed in the Garda Inspectorate report of 2015, which is now gathering dust in the Minister's office. These issues include poor investigation techniques and detection rates, the absence of proper record or note taking, the absence of proper supervision and training, the appalling treatment of victims of crime and the massaging of figures and PULSE records by gardaí. The O'Higgins commission refers to evidence given that a new performance management system is about to be introduced in An Garda Síochána, suggests that it be implemented immediately and states that a systematic approach to management of performance for members and officers should be part of the culture of An Garda Síochána. Will the Minister please provide details on the proposed performance management system?

The Irish Human Rights and Equality Commission recommended that the Policing Authority discipline, appoint and dismiss all senior gardaí, including the Commissioner, and highlighted the need to align breaches of discipline and criminal offences identified by GSOC with disciplinary procedures within An Garda Síochána. In contrast to the Policing Authority in the Republic, the Northern Ireland Policing Board has a clear disciplinary and supervisory role provided for it in its legislation. Garda discipline remains an internal matter only for rank and file gardaí, to be doled out behind closed doors.

The Minister's press statement concludes by saying she has asked the Garda Commissioner to "indicate... what further measures might be taken to try to prevent the type of difficulties outlined in it in relation to An Garda Síochána arising again". I ask the Minister to commit to updating the House in this regard. I also ask the Minister to consider issuing a directive or an order in accordance with section 25 of the Garda Síochána Act 2005 requesting a full explanation of the allegations now in the public domain regarding her privately expressed views of Sergeant McCabe's motivation, credibility and, possibly, integrity. The Policing Authority does not have the power to issue a directive to the Garda Commissioner and so cannot be expected to satisfactorily address this issue.

I certainly would not take any comfort from the carefully worded and crafted earlier statement of the Garda Commissioner when she said that she does not and never did regard Sergeant McCabe as malicious. This statement clearly sidesteps the issue of whether or why she gave instructions to her counsel to submit to the O'Higgins commission that Sergeant McCabe was motivated by malice in his complaints when her public statements of support for McCabe were at that time directly at odds with any such instructions. What action, if any, has been taken by the Commissioner or the Minister with regard to the leaks that two members of An Garda Síochána were allegedly prepared to perjure themselves in their evidence to the O'Higgins commission in order to falsely impugn Sergeant McCabe's motives? This would have been a criminal offence under section 18 of the Commissions of Investigation Act 2004 but for the providing of a recording by Sergeant McCabe which resulted in the alleged withdrawal of these witnesses. It must be emphasised that Commissioner O'Sullivan had a very specific and personal role in this when acting in her capacity as assistant commissioner of human resources and chapter 13 of this report questions the decision she made in respect of the investigation sought by Sergeant McCabe.

In an effort to provide objective and independent clarification of this leak once and for all, in the interest of transparency and in order to prove a real sea change in Government attitude to Garda whistleblowers, will the Minister now confirm the accuracy or otherwise of the leaked transcript? Section 43 of the Commissions of Investigation Act 2004 sets out that she must now be in possession of the transcript and all evidence given and the O'Higgins commission is now dissolved. Will the Minister also commit to the publication of the relevant parts of the official transcript to the House?

In any event, section 40 of the 2005 Act, as amended by the 2015 Act establishing the Policing Authority, restates and reiterates that the Garda Commissioner is accountable solely and exclusively to the Government and the Minister and not to the authority. Furthermore, the Policing Authority has no ultimate role in respect of the hiring and firing of the Commissioner. There is a clear absence of any real sanction or power to compel compliance. The authority does not have either the carrot or the stick. Therefore, the referral by the Minister of the report to the Policing Authority would appear to be a cynical effort to kick the political football to touch and to an organisation that has been provided with no real legislative power to properly deal with or address the very serious issues that arise from this report. Unfortunately, it seems that, similar to GSOC, the new Policing Authority is at risk of becoming a convenient scapegoat for this Fine Gael Government's cowardice and reluctance to take political responsibility for real Garda reform.

I agree with the final part of the Minister's press release on the publication of the O'Higgins report when she states, "It would be an injustice to those who brought events to light in the public interest and those who have lived under the shadow of these events for a long time, if we do not take on board the lessons from these events". The O'Higgins commission noted in its conclusions that it is "glad to note the coming into effect of Directive 2012/29/EU in November, 2015 dealing with the rights of victims", given the appalling treatment of the victims of crime and the incidents in the report.

Before the Government and the Minister take credit for this development, it should be noted that the welcome protection set out in this directive has been imposed by the EU since the directive was adopted in 2012 but due to the absence of any domestic implementing legislation in the two-year time period, the protections only became available to Irish citizens by default in November 2015. This Government has still not drafted the necessary implementing domestic legislation to provide fully for these protections. This is the priority the Government provides to victims of crime in this country; it must be dragged kicking and screaming by the EU to protect its own citizens.

Sadly, the emergency of the allegations in respect of the Garda Commissioner, the questionable reliance on legal duty to avoid political responsibility, the delay and selective leaking of the report, the resistance of the Garda Síochána to outside investigation, as noted in this report, and the diluted and superficial reform undertaken by this Government leave little hope that the poor quality policing and the tragedies detailed in the O'Higgins report will not be repeated or that there is any reliable and satisfactory system of transparency in existence to investigate them when they recur.

Let us consider the Commissioner's statement today. Essentially, she admits that she gave instructions to challenge the credibility and motivation of Sergeant McCabe. The distinction she draws between challenging his credibility, which she admits, and his integrity, which she denies, is unreal. A lawyer cannot attack someone's credibility, that is, whether the person is telling the truth, without also attacking that person's integrity at the same time. Moreover, the Commissioner has now referred the two gardaí to GSOC for investigation. Her statement does not clearly indicate that she was not aware these two gardaí were planning to perjure themselves or provide false evidence to impugn Sergeant McCabe's motives until a recording was produced. It is incumbent upon the Garda Commissioner to clarify this for the record in light of the seriousness of these allegations, the question mark over the Commissioner's role and involvement in the investigation of Sergeant McCabe, as per chapter 13 of the report, given the treatment that Sergeant McCabe has endured in the past ten years and to reassure any future potential whistleblowers of her commitment in this regard.

The two people the Commissioner refers to are Superintendent Noel Cunningham and Sergeant Yvonne Martin who were at the meeting in Mullingar. The transcript was leaked. In it, Mr. Smyth says: "I appreciate that but my instructions are to challenge the integrity certainly of Sergeant McCabe and his motivation". Mr. Justice O'Higgins then says, "The integrity?", and Mr. Smyth replies, "His motivation and his credibility in mounting these allegations of corruption and malpractice". Mr. Justice O'Higgins then says: "In other words that he made these allegations not in good faith but because he was motivated by malice or some such motive and that impinges on his integrity. If those are your instructions from the Commissioner, then so be it", to which Mr. Smyth replies: "So be it. That is the position, Judge."

Mr. Justice O'Higgins then asked him whether these were his instructions from the Commissioner. Mr. Smyth replied: "Those are my instructions, Judge." The legal team for Sergeant McCabe insisted that Mr. Smyth go outside the room, contact the Commissioner and check whether this was definitely the road he wanted to go down, whether that was what he was really saying. He came back in and said: "Those are my instructions, Judge." He further said: "I mean this isn't something that I am pulling out of the sky, Judge, and I mean I can only act on my instructions."

Clearly the Commissioner thought she was going to get away with throwing Mr. Smyth under the bus on the integrity issue. However, she is not getting away with the fact that she found out in May from the recording of the fourth day that the evidence being put forward by Superintendent Cunningham and Sergeant Martin was totally false. What did the Minister do about it at the time? I will tell the Minister what she did: she did nothing about it. Is the Minister going to let that slip? Is the Minister going to allow the Commissioner to stay in her position? It beggars belief. She does not have a leg to stand on.

There are so many aspects to this and I do not really have time to go into the report. In the past two years myself and Deputy Clare Daly have raised issues 18 times about how the Department and the Commissioner have dealt with whistleblowers. Garda Nicky Keogh wrote to the Minister last week. He made allegations on 8 May 2014 to the confidential recipient, Judge Pat McMahon. After that, he said he was subject to five internal investigations and relentless harassment. He said he has been driven out and has been out sick since 26 December. He also says he has got no protection. The Minister will know this from the letter she received.

His letter went on to say that further to his letter dated 25 July 2015, he had made a protected disclosure to GSOC in respect of a flawed Garda criminal investigation into a conspiracy to supply heroin involving a member of An Garda Síochána in contravention of section 21 of the Misuse of Drugs Act 1977. He said he believed this was no more than a deliberate and unmitigated cover-up by the Deputy Commissioner, Donal Ó Cualáin. He said he believed that the investigation was similar to the internal Garda investigations into Garda misconduct in Donegal in the 1990s. He went on to say that the protection offered to him as a whistleblower under the terms of the protected disclosures legislation was completely disregarded and ignored by the Garda Commissioner, Nóirín O'Sullivan. In fact, he believes that as with other senior gardaí who have met the confidential recipient, Judge McMahon, on the question of Garda misconduct in Athlone, every effort has been made to break him mentally and financially. He said this orchestrated harassment could not have been done without the full knowledge and support of the Garda Commissioner, Nóirín O'Sullivan.

Sergeant Maurice McCabe would be buried by now if he had not taped the conversation. The Commissioner should be buried by now but the Minister is holding her afloat. I put it to the Minister that she is on a sticky wicket.

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