On May 25, Mr Justice Brian Cregan submitted the final report of the IBRC Commission to the Taoiseach, and it was discussed at cabinet last week.

Despite running to just 15 pages, it made for disturbing reading.

It was not what the judge said about the focus of his investigations since 2015 – the sale of the utilities company Siteserv to the businessman Denis O’Brien. His views on the transactions have been well flagged before in his previous reports: essentially that the transaction was “tainted by impropriety and – in respect of [the firm’s former CEO Brian] Harvey’s concealment of his material interest in Mr O’Brien’s bid – wrongdoing that the transaction was not commercially sound”. (The judge made no negative findings against O’Brien himself).

Instead, it was what the judge said about the nature of the investigation, and the way commissions operate, that was thoroughly chilling. Essentially, they run too long, cost too much, and are not fit for purpose.

This is nothing new, of course. Ireland has form with instigating investigations that go on too long and discover too little. But over the 15 pages, Brian Cregan essentially dispatches the world he has lived in since 2015.

At the outset of his report, the judge notes the concern of members of the Oireachtas about the continual delays in the commission’s work. In fact, he shares their concerns. “It is a matter of concern that an investigation which the Oireachtas stated to be of ‘urgent national importance’ should take a period of seven years,” Judge Cregan states. He adds that his previous reports outlined some of the reasons for the delay, including the need for new legislation which delayed the commission for more than a year.

According to the judge, it is now “impossible” to conduct a commission of investigation in the modern era in an expeditious manner and to comply with the “onerous” requirements of fair procedure laid down by the courts. In addition, the Commission of Investigation Act 2004 is also an issue, he states, adding: “This is a highly undesirable state of affairs.”

Judge Cregan said that when the Oireachtas sets up a commission to investigate matters of significant public concern, it should be able to report within two years.

This, clearly, is not happening.

So, the judge has recommended some areas that can be reformed to make commissions of investigations work properly, including a number of changes to the law.

To begin with, Judge Cregan looks at the terms of reference. As we know, the terms of reference for the IBRC Commission bordered on the farcical – the public concern at the time centred on Siteserv, but the terms of reference went far beyond that one transaction to look at all sorts of incidental issues. None of those issues will ever be examined, but all were included in the initial terms of reference, something Judge Cregan calls out quite clearly.

“In the Siteserv investigation, the inclusion of the term ‘not commercially sound’ in the commission’s terms of reference added years to the completion to the report,” the judge states.

He adds: “The meaning of that term was susceptible to different interpretations, both as to its scope and as to the standard that applied in relation to it; and its practical effect was to require the commission to investigate the Siteserv transaction not just for its commercial outcome but also for property, wrongdoing and unlawful activity.”

The judge recommended that the terms of reference needed to be clear and focused and confined to matters of fact.

It is a pity Judge Cregan has waited until now to say that. Time and money was wasted collecting information about deals that were, early on, obviously never going to be investigated. 

Judge Cregan was tasked with looking at 38 different transactions, plus interest rate practices in the bank and any other matters of public interest. 

Such a ridiculously sweeping remit made sense politically for a government then led by Fine Gael’s Enda Kenny that wanted to bury mounting criticism in the Dáil and in the media.

It ensured the investigation was not about a deal involving Denis O’Brien, Siteserv and a bank – but instead became about much, much more.

Judge Cregan should have called this out years ago, and asked for narrower terms of reference by saying those he had were unworkable. 

He also looked at issues around fairness and process, before outlining what he believed to be a new model for future commissions of investigation and a reform of the 2004 Act. Many of his suggestions, such as changes to discovery orders and the capacity to take evidence from witnesses in private, are procedural.

However, his main suggestion was for the establishment of a permanent Commission of Investigation body – essentially, a standing body that would investigate issues as they emerge. “Previous commissions have now had many years[‘] experience of the difficult and intricate task of conducting a commission of investigation in accord with the complex provisions of the Commissions of Investigation Act, 2004 and all of the requirements of constitutional justice,” Judge Cregan says. He adds that it would be far more advantageous if the State had a panel of lawyers who understood how commissions should work.

The lessons from the IBRC Commission are more about how not to do it rather than pointing to a new model.

The duration of the IBRC Commission cast an undeserved shadow over the reputations of the board and executive of IBRC, as well as others, for seven years. This should not have been allowed to happen.

The judge also went on to look at the issue of anonymous sources, and how they raised significant difficulties. Judge Cregan spent considerable time probing these claims and endeavouring to discover their sources. Ultimately, the anonymous claims came to little, and the meat of his findings relate to other matters. Would it have been better to have dismissed them sooner instead of wasting considerable resources chasing shadows?

It is a shame that it has come to this. This investigation, like so many, went on for far too long and, due to its terms of reference, went on behind closed doors.

As a model of investigation, it clearly does not work. Even the man who spent the past seven years leading one commission accepts that.

The government needs to act.

*****

Elsewhere last week, we reported on a series of company insolvencies. The Naked Collective, a healthy drinks company founded by Niall Phelan and Cat Butler, was plotting an international expansion but it has now summoned creditors to a meeting to wind up the business.

A company founded by businessman Gerry McCaughey promised to change the way that America built its houses, but things didn’t go quite to plan. It lost $40 million and was shut down.

And interim examiners have been appointed to Mac Interiors. An 85-page report from EY reveals how it got to this point and the scale of the company’s issues. Tom and Rosanna had the details.

Anthony Scaramucci has been in the thick of American life for 30 years. He has worked at Lehman Brothers, founded multiple businesses, worked in the White House, and befriended Sam Bankman-Fried. At the Blockchain Ireland event, he talked about his life and the outlook for digital assets.

A study by the Irish Fiscal Advisory Council warns of public finances’ reliance on a handful of large corporate taxpayers, especially the top three. The report doesn’t name them, but Thomas did. You can find out who they are here.

Awash with these windfall corporate tax receipts, finance minister Michael McGrath recently presented a “scoping paper” on a future sovereign wealth fund to cabinet. From offshore markets to management fees, Peter gave some suggestions for how it should operate.