Fresh powers to strengthen the IBRC inquiry would make it a tribunal in all but name and allow the stalled probe to resume work and report back within a year, Enda Kenny has told opposition leaders.
Outlining legislation to beef up the IBRC Commission of Investigation, Mr Kenny also warned of legal challenges and costs for the embattled probe.
He said attempts to prioritise an investigation on the sale of construction company Siteserv, sold at a write down of €119m to business man Denis O’Brien, could result in a legal challenge.
A 12-page confidential letter given to opposition leaders outlines nine options and draft legislation to allow chairman Judge Brian Cregan overcome legal and privacy concerns with the inquiry.
The inquiry, originally tasked with examining almost 40 transactions by the former Anglo Irish Bank, will not report before the general election. Its final cost and report date also remains unclear. Mr Kenny did not confirm when or if the proposed legislation would come before Cabinet.
In his letter, he said the extra powers for the inquiry, similar to that of the High Court, would allow the commission “to become a tribunal of inquiry in all but name, with subsequent implications in terms of costs and timeframe.”
His letter said the format would still be distinct, that it would have to report back to government and could still have private hearings.
Under the proposals, the IBRC inquiry may accept documents covered by confidentiality, if they are in the public interest. It could also seek direction from the High Court on matters.
Furthermore, both the minister for finance and IBRC’s special liquidators would have the right to waive legal professional privilege over documents. Such a move though could result in a costly court challenge for the State, the letter warns: “Any legislative amendment to interfere with professional legal privilege would be open to constitutional and legal challenge on a number of grounds.”
The options circulated said parts of a report could be withdrawn or blocked for commercial reasons. The inquiry could report in a modular or panel fashion with extra members, the letter added, and finish its work within 12 months.
But prioritising the probe around the Siteserv deal, which led to the commission, could also see a legal challenge, the letter said.
Social Democrat TD Catherine Murphy said Mr Kenny was using consultation with the opposition as a delaying tactic.
The Kildare TD said the risk of litigation had scarred the Government away from committing to the probe before the general election is called.
“I question whether the Taoiseach feels that the risks of pursuing the inquiry outweigh the potential benefits in his judgement. If that is the case then I would seriously question how he balances the common good with the powers of wealthy individuals.”
Mr Kenny last night said he would await opposition views on the proposed options before deciding what to do. A Government spokesman could not say when or if the options would go to Cabinet next week.
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