Cliff Taylor: Ross’s ticket inquiry faces legal minefield

Imagine if Shane Ross the columnist could write about Shane Ross the Minister. In the Olympic Council of Ireland (OCI) we have an organisation that gets substantial funding from the Government but even a simple request from the Minister to have an independent person on an inquiry being conducted into the ticketing controversy was batted away by the organisation's president Pat Hickey.

Ross took pride in having a pop at impotent ministers. Imagine the fun he would have had with this one.

Of course, that was before Hickey was arrested – and it is clear now that the ones facing the big questions are the former OCI president and the two companies at the centre of the affair. It remains to be seen if charges will be brought and what, if they are asked, the Brazilian courts will decide.

But, either way, we have a much better chance of finding out what happened from Rio – where the police seemed to adopt a US-style approach to feeding out information – than we do from Dublin and from the Minister’s inquiry. Because, for Ross and his colleagues, there is one problem. They have no easy or quick way of finding out what went on here. We have seen repeatedly that Irish governments struggle to establish a basis for, simply, finding out the facts when faced with questions of public interest.

We have been down this road before in recent years, with very mixed results. Remember the inquiry into IBRC transactions that we were told would be done and dusted in six months? That was more than a year ago and it has since transpired that it requires new legislation to even get going and would take years to complete.

Yesterday, the Minister announced that he was to ask a retired judge to start down the inquiry trail. This is what the occasion seemed to demand – a political response to a big controversy. And we do need to know what happened. But Ross is running the risk of setting up a toothless inquiry which will come up with little by way of new information.

The inquiry here is to be on a “non-statutory” basis, meaning the initial job of the of the judge will be to collect whatever information various parties will hand over and assess what more needs to be done. There will be no power in this phase to compel anyone to give evidence or hand over documents. Presumably this route was chosen because legal proceedings in Brazil are already underway.

The danger for the Minister is that his inquiry runs into the sand. It is hard to see anything more than scoping work being done on an Irish investigation while this is under way.

Compel witnesses

Even after the legal process in Brazil is over, there are big barriers. The two companies at the centre of affairs, THG and Pro10, have “welcomed” the inquiry and the OCI said it would co-operate. However, what co-operation means remains to be seen. These are private organisations, not state bodies, after all. Are they really prepared to open their books voluntarily to the inquiry?

The only obvious way to actually compel witnesses, and get access to documents would be to set up a commission of investigation under 2004 legislation, the same used for the IBRC inquiry.

This is the route which, if information is not forthcoming, the judge may well recommend to the Minister.In theory, this could work as this would then be a statutory inquiry with powers to compel witnesses and get access to documents. In practice, there could be endless rows about what documents such an inquiry could have access to and how it could use them.

There is also the complication not only of the legal process in Rio, but also the fact that some of the key players are overseas, and thus likely to be outside the reach of any Irish inquiry.

It is not the fault of Ross, of course, that we do not have a mechanism to find out the facts. There is a balance to be struck between the public’s “right to know” and the rights of individuals to confidentiality, a fair process and, where relevant, to a fair trial. But, in Ireland, a potent mix of confidentiality and constitutional rights are invoked – again and again – to beat off inquiries. And now Ross faces the same legal quagmire as he tries to establish what happened.

The Government gave over €500,000 to the OCI in 2015. But the normal rules that might allow some accountability or oversight do not seem to apply in what was Hickey’s empire. As the OCI got less than half of its annual funding from the Government, it does not seem that the Comptroller and Auditor General has any oversight, either.It is hard to see any Irish investigation getting very far in the short term.

There is a big hole here in our ability to establish the facts in matters of public interest.And the Minister will know that establishing a non-statutory inquiry when a legal process is underway elsewhere will allow no more than a scoping exercise. All parties will say that they cannot prejudice the legal process. There are a few questions here to be answered, but don’t expect anyone to be in a rush to do so.

Challenge

The Minister’s toothless inquiry will not get very far. If the facts emerge in a Brazilian court, he may not have to go further. If they do not, he will be pushed down the road of a statutory inquiry.

Ross was outboxed comprehensively in round one by Hickey. But the arrest of the former OCI president has changed everything. The Minister needs to ensure that he doesn’t lose the coming rounds.

His first problem is that we still look likely to learn a lot more about what happened from Rio than from the Ross inquiry. And then the Minister faces the challenge of ensuring that a proper shape and governance is put on the Olympic Council of Ireland for the future. Again, he has no direct power here, beyond the threat to remove funding. But he needs to make sure that it happens and that a line is drawn under this embarrassing episode.

And you might have thought that being Minister for Sport was a cushy number. . .