Former IBRC chairman Alan Dukes warned the inquiry that “full access” to documents would be needed by him and Anglo Irish Bank’s former directors cooperating with the probe. However, commission chairman Judge Brian Cregan replied that special liquidators for the bust bank were refusing to waive their right to confidentiality and privilege, Mr Dukes last night told the Irish Examiner.
The revelations will raise further questions about what the Coalition knew, and when, about problems threatening to derail the IBRC probe as it scrambles this week to stop it collapsing.
Judge Cregan told Mr Kenny’s officials last week that problems over confidentiality and privilege mean he is “not in a position to proceed” with the inquiry into write-offs by IBRC.
The resulting delay in the inquiry probing the sale of Siteserv to businessman Denis O’Brien among other deals comes just weeks ahead of when it was expected to submit its report. The legal impasse will now likely set back the completion of its work until after the general election.
The inquiry is examining 37 deals done by IBRC, involving write-downs of €10m or more, including the sale of Siteserv to Mr O’Brien which saw the taxpayer lose some €119m.
Attorney General Máire Whelan will today brief the Cabinet about options — including emergency legislation — which can be used to ensure it can continue its work.
Mr Kenny insists the impasse will be resolved while Tánaiste Joan Burton yesterday said issues of public interest were more important than corporate confidentiality.
Mr Dukes last night said that he had raised concerns about he and former Anglo directors co-operating with the inquiry during a meeting with the commission on August 30.
“We said we need to have full access to the documents, it is fair procedure,” said Mr Dukes. “He [the judge] said he understood that and told us the liquidators were claiming confidentiality and privilege. He said he hadn’t yet worked out how we would deal with that.”
The former IBRC chairman also claims the Department of Finance are putting up obstacles to the inquiry and not waiving their right to confidentiality and privilege.
“The department have supplied them [documents] to the inquiry, but they have not waived their rights,” said Mr Dukes. “But the judge has said he doesn’t have the power of the courts, so he is snookered. We have said we need full, unqualified access, otherwise it is unreasonable to expect us to co-operate.”
Finance Minister Michael Noonan yesterday said his department has co-operated fully with the IBRC probe and provided all documents unredacted. His officials later confirmed the department had received legal advice and as such had decided not to waive its rights around releasing documents and told the judge legislation for the investigation “gave him the powers to override” those protections.
Government sources last night said the Cabinet may not agree a resolution immediately today but that a “suite of options” would be examined.
A Government spokesman said the first Mr Kenny was informed of problems with the inquiry’s work was last Thursday, before this was received in writing on Friday.
Coalition figures also pointed out that previous concerns about confidentiality and privilege had not been raised during previous inquiries set up under the 2004 legislation for commissions of investigation.
Mr Dukes, though, warned that overcoming the current impasse could be near impossible.