The NAMA saga continues

Long time readers will recall that this blog has been having something of a legal disagreement with both the National Asset Management Agency (NAMA), and more recently our own Office of the Commissioner for Environmental Information (OCEI). The saga has now been running for eight months, and looks set to continue for some time yet.

For new readers (and we see from our subscriber figures that there are many new readers) we should perhaps recall how this legal battle commenced. Back in February, realising that NAMA does not come under Freedom of Information (FOI) legislation – because our Minister for Finance decided not to prescribe it – we instead turned to that other arm of right to information legislation: the Environmental Information Regulations, or EIR for short.

We sent a request for information to NAMA, which was promptly refused on the basis that NAMA did not consider itself to be a public authority for the purposes of those regulations (SI 133/2007). We disagreed, citing that the Regulations stated that a body “established by or under statute” (and also that the board was appointed by the Minister) was a public authority, and therefore NAMA was a public authority. In disagreeing, we sought an internal review from NAMA. NAMA complied, and their internal review agreed with their original decision, that NAMA was not a public authority. We then appealed the matter to the OCEI, a sort of sister office to the Information Commissioner, and also headed by Emily O’Reilly. We also added a further submission to that appeal. Months passed, after which we received a letter from the OCEI – a preliminary decision which agreed with NAMA that it was not a public authority, and seeking our response. We then replied to that preliminary decision, as we were asked by the OCEI to do.

Last week we received a copy of NAMA’s reply to our response, and have been invited to make a further submission, in advance of a binding decision by the OCEI. This has actually become reasonably technical on a legal level – but we believe it is all really rather simple. The core argument (among two other significant arguments) is actually based on how one reads the legislation.

The legislation states:

“public authority” means, subject to sub-article (2)—

(a) government or other public administration, including public advisory
bodies, at national, regional or local level,

(b) any natural or legal person performing public administrative functions
under national law, including specific duties, activities or services in
relation to the environment, and

(c) any natural or legal person having public responsibilities or functions,
or providing public services, relating to the environment under the
control of a body or person falling within paragraph (a) or (b),

and includes—

(i) a Minister of the Government,

(ii) the Commissioners of Public Works in Ireland,

(iii) a local authority for the purposes of the Local Government Act 2001
(No. 37 of 2001),

(iv) a harbour authority within the meaning of the Harbours Act 1946
(No. 9 of 1946),

(v) the Health Service Executive established under the Health Act 2004
(No. 42 of 2004),

(vi) a board or other body (but not including a company under the Com-
panies Acts) established by or under statute,

(vii) a company under the Companies Acts, in which all the shares are
held—

(I) by or on behalf of a Minister of the Government,

(II) by directors appointed by a Minister of the Government,

(III) by a board or other body within the meaning of paragraph (vi), or

(IV) by a company to which subparagraph (I) or (II) applies, having
public administrative functions and responsibilities, and pos-
sessing environmental information;

Simple, right? One would think so, but NAMA doesn’t see it that way.

As far as NAMA is concerned, and indeed the preliminary view of the OCEI, it hinges mainly on what the words “and includes” mean. For us the legislation says:

a “public authority” means X and includes Y

where X represents the three types of public authority 3(1)(a)-(c) and Y is a list of bodies and categories of bodies i.e. 3(1)(i)-(vii). We believe NAMA clearly falls within the definition of 3(1)(vi). But NAMA reads parts (i) – (vii) as a subset of (a-c).

You could say we are at loggerheads on this one. And this actually goes beyond whether NAMA is or is not a public authority under this legislation. The disagreement here is so fundamental that it affects all other types of bodies that may or may not be public authorities under the same legislation. It is of fundamental importance to how this legislation is applied in the future, and could decide on how limited, or unlimited, the definition of public authorities becomes. Dozens of bodies could be included or excluded on the basis of how this legislation is interpreted.

Here is the letter from NAMA on this case:



A reply to this letter has already been drafted (with huge, indeed massive help from a reader of the blog), and we will publish it here once submitted. Should the OCEI find against us, and find that NAMA is not a public authority, our only recourse would then be to the High Court on a point of law.

The support of our readers, particularly those legal pros among you, is of course always appreciated.

Edited: Ahern didn't forgo pension?

EDIT: [As pointed out by Dave Molloy in comments. “Sorry, but, ‘payments made last year’ and “earlier this year said he would forgo his pension” (from then on, presumably) seem compatible, no?”]. I got the relevant years mixed. Post left as was to show the world my foolishness and remind me not to post in such haste again. – Mark

Both myself and Gav are hectic with the day jobs (shocker, jobs!) and haven’t had the time to blog anything too significant of late. We’re getting around to it.

In the meantime; isn’t it amazing that a detail like the following doesn’t get more than 30 words, 12 paragraphs down, 17 pages into your newspaper these days.

Fiach Kelly in the Irish Independent yesterday;

Accounts published last night by the Department of Finance also showed pension payments made last year to former office holders including: former Taoisigh John Bruton (€100,027); Garret FitzGerald (€103,926); Albert Reynolds (€109,358); and Bertie Ahern (€98,901).

Mr Ahern, a sitting TD, earlier this year said he would forgo his pension while he was still serving in the Dail.

I suppose Ahern could argue he’s not actually a ‘sitting’ TD, if he had the neck.

(Eh I agree with Dave below Mark, have you read this incorrectly? – Gav)

Taoiseach’s diary 2004

As part of an ongoing process, the appointments diary of then Taoiseach Bertie Ahern for 2004. Redactions marked ‘A’ are so because the department believes them to be “personal information” as defined in Section 28 of the FOI act. Entries marked ‘B’ relate to the Taoiseach’s private papers as a member of the Oireachtas. Regards ‘B’ redactions – the cover letter from the FOI officer states “Section 46 of the Act states, inter alia, that the Act does not apply to records relating to any of the private papers of a member of the Oireachtas and as such I consider that the Act does not apply to these entries.”



Previously:
Taoiseach diary April 1998 to March 1999
Taoiseach diary April to December 1999
Taoiseach diary 2000
Taoiseach diary 2001
Taoiseach diary 2005
Taoiseach diary 2006
Taoiseach diary May 2008 to May 2009

When she was good she was very very good…

Stories about Ireland are leading both the Ft.com and WSJ.com.

WSJ:

Ireland’s deepening troubles raise doubts about the wisdom of the stringent fiscal austerity measures that the former Celtic Tiger and other European countries have put in place, which effectively hamper consumers and take cash out of the economy.

At the same time, Ireland’s gloomy prospects mean the government may have to make even deeper cuts this winter to reduce its budget deficit, which is expected to surpass 25% of GDP this year, the biggest in the 16-nation euro area by that measure. The possible doubling in the deficit—now about 12% of GDP—is due largely to the cost of bailing out troubled banks.

FT:

News that Ireland’s GDP fell 1.2 per cent in the second quarter added to the anxiety, as did rumours of a default by Allied Irish Banks. It should be stressed there has been nothing to suggest the latter is anything other than market scuttlebutt.

The markets are confused by Allied Irish Banks (AIB, known as AIB) and Anglo Irish Bank (‘AIB’ known as Anglo)?

Jesus lads, even a name change, just for the next day or so?

'Fading fast'

I hope to write something worthwhile later tonight. Until then I shall continue outsourcing comment to FT Alphaville.

In addition to what’s now being called the ‘Irish Panic’ — after the market punched Ireland credit default swaps in the face on Thursday, following fears that Anglo Irish will be brought down by its subordinated debt — here’s another Gaelic headache…

It must be some sort of economic indicator when a small country’s bloggers begin regularly outsourcing comment to the Financial Times. Suggested names for said indicator gratefully received via postcard or comment.

"One day it's fine, the next it's black…"

This was published nearly a week back but it’s still worth a read.

QUALIFIED solicitors and accountants have been applying for some of the 25 positions that have been advertised at the refurbished Supermacs fast food restaurant in Kilkenny.

Supermacs human resources manager, Jacintha Greene told the Kilkenny People that due to the calibre of the people applying, compiling a shortlist had become “a bit of a nightmare.”

She said that she had received applications from people with masters level qualifications in law and finance, even qualified solicitors and accountants.

Props to the sub on the headline.

There was a similar scene filmed for a 1985/86/87 news report, I recall, with a law graduate looking for a job in the [then] new McDonalds on the Navan Road in Cabra. I’ve two gummy bears and a melted Wham bar for anyone who can locate the footage.

With news stories like that and reports like this by Mr Singh The Clash’s questions remain relevant for far too many people my age.

Best leave two hours for Reeling in the Years 2010, Mr Scheduler.

Dick Roche’s representations

Sunday Times journalist Mark Tighe has published some interesting documents concerning Minister of State for European Affairs, Dick Roche. The correspondence details Mr Roche making representations relating to a tender for patient transport services for the HSE. As Mark explains:

The Wicklow firm that Roche lobbied for is run by Pat and Irene Sweeney in Arklow. Pat Sweeney has been a town councillor in Arklow for Fianna Fail while Irene, his wife, ran unsuccessfully for Fianna Fail in last year’s local elections.

Roche wrote to Brendan Drumm, chief executive of the HSE, and the HSE’s board to criticise the “fundamentally flawed” HSE tender process for taxi services in which the Sweeney’s failed to win a contract.

Ms Sweeney was also appointed to the board of the EPA. Mr Roche claims to have been acting on behalf of constituents, but they are constituents who were clearly party political, and Mr Roche was trying to interfere in the tender process on their behalf. This type of behaviour from a politician is sadly, likely all too common – political loyalty above serving all of the people.



John McManus on CIÉ

CIÉ is funky.

The issue was so serious that CIÉ deemed that it merited an investigation in 2009 by external consultants Baker Tilly Ryan and Glennon. However, it did not think it worth keeping the department in the loop about the problem and more seriously, the executive chairman of the company, John Lynch, did not mention the issue in his annual statement on compliance by the company to the department. When tackled on the issue Mr Lynch acknowledged his mistake and explained that “as the issues arising were being dealt with, he felt that there was no need to make specific mention in that regard”.

[…] But the real problem – the failure of the CIÉ board and its executive chairman to disclose what at the very least was an embarrassing problem that did not reflect well on them – to its shareholder is not so easily fixed.

It might be possible to dismiss the issue as a once off, but for the fact that the C&AG’s limited enough study found other serious governance failures.

According to the report CIÉ was a month and a half late submitting its unaudited interim accounts to the department in 2009. It was also late with its draft unaudited annual accounts and over two months late in the submission to Government of its annual report and accounts.

The other issue raised by the C&AG was the failure of Lynch to submit his chairman’s report for 2009 under the 2009 Code of Practice for the Governance of State Bodies. He submitted it instead under the older 2001 code of practice and when requested to resubmit it under the new code, he did so in July 2010.

I’ve previously blogged on the Baker Tilly Report here in some detail. The only digital copy is available at that link if you wish to have a gander. John Lynch has got the odd mention or two around these parts also.

FOOTNOTE: CIÉ is not under FOI. I don’t know why either, guess various ministers never got around to it. The State is the sole owner. It’s a statutory corporation…

Digest – September 19 2010

Here ye, hear ye… yadda yadda yadda…

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Sara Burke on HSE spending on agency nurses and recruitment moratoriums

The C&AG cites the HSE’s own internal audit which shows that agency staff exceed the cost of employing nursing staff by 36.5% and he clearly implies that this is not the most efficient use of tight resources. Yet internal HSE figures for 2010 show that up to July of this year just under €30 million has been spent on agency nursing and €37 million on other agency staff, doctors, allied health profs etc..

This practice continues because if health managers want to keep services open they have no other choice to keep services safe, but it clearly highlights the blunt instrument that the moratorium is and the constraints its putting on the health service. It impacts on the quality of nursing care but also we are also seeing its impact on closed wards and reduced services.

Read this by Shane Ross: Humiliated, not humbled.

Anglo’s bosses immediately stood on their heads and pledged to promote the dreaded “wind-down” — the solution that they had been bad mouthing less than 24 hours earlier.

On Tuesday their mission was to keep Anglo alive; on Wednesday, to kill it.

Dukes lamely pleaded that the final solution was a “variation” on Anglo’s plan. Which it was not.

Will we now see the resignation of non-executive directors Dukes, Kennedy, Keane and Eames? Their pipe dream is in tatters. Rejected by the markets, the Commission, the Government — and undoubtedly by the people.

Not a chance.

The non-executives are humiliated but not humbled. Nothing has changed. Bankers sit tight, stand on their heads and take the money.

New location, old culture.

Miriam Cotton on women in politics, gender and merit.

John McHale on the mechanics of bond buy-backs.

Gerard O’Neill on illiberal democracy via Spiked! magazine.

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