As amendments Nos. 1 and 71, including Deputy Fitzgerald's amendment to 71 and the relevant part of No. 72 are consequential on No. 51 and, as No. 70 is related, I suggest that we take this lot together.
Anti-Discrimination (Employment) Bill, 1975: Committee Stage.
If we disagree on some point, either on one of my amendments or on an amendment tabled by the Minister, will there be provision for separate votes?
In the event of a vote would it be the case that we would be precluded from continuing discussion on whatever amendments remained?
As the Deputy's amendment is to No. 71 we would have dealt with the other amendments by that stage.
In other words, the votes will not be taken until discussion has ended?
If there are votes, they will be taken at the appropriate stages, that is, as we reach any amendment on which a vote might be called.
But would a vote preclude further discussion?
The normal procedure will be followed. The amendments will be dealt with in order. There can be only one debate but provision for several decisions.
I move amendment No. 1:
In page 2, between lines 19 and 20, to insert the following:
"‘the Agency' means the Employment Equality Agency established by section 27;".
This amendment provides for a definition of the agency which will be known as the Employment Equality Agency. Amendment No. 51 provides that the agency will be established by affirmative order. As I said in putting the motion we have just dealt with, the agency will consist of a chairman and ten ordinary members to be appointed by me and that of those ordinary members, two shall be workers' representatives and two employers' representatives, while of the remaining six which shall be nominated by me three shall be representative of women's organisations.
In a matter of this kind I do not know whether we should concern ourselves about the sex of the members. What is important is that the representatives be authentic representatives of the organisations nominating them. If a woman were available for the post she would probably be nominated by the organisation representing the women, but obviously a man could be nominated also. Unfortunately it is not always women who are the best advocates of women's rights. I merely make this point because the Deputy implied that there was an innate virtue in women being nominated to these posts. It is important that women's organisations are given a natural place when certain vacancies are to be filled by women's organisations.
Such matters as terms of appointment, disqualification, resignation, remuneration, powers of removal, replacement of members and the procedure for filling casual vacancies are set out in the Schedule. The staff will be civil servants and the agency will be on the same lines as agencies with similar functions in other countries, such as the Equal Employment Opportunity Commission in the US, which was established in 1972 for enforcement of the elimination of discrimination, the Equal Opportunity Commission in Britain and a similar body in Northern Ireland.
Amendment No. 70 provides for the agency to be established on a date other than that of the coming into operation of the Act. It is our intention that the agency be provided with the resources required to effectively carry out their functions.
Under the affirmative order procedure any proposal of the Government in regard to the date of the establishment of the agency will require to be supported by resolution of each House of the Oireachtas.
Amendment No. 71 provides for a Schedule that sets out the rules and regulations applicable to appointments of members and staff, procedures for filling casual vacancies and so on. Paragraphs 1 to 16 of the schedule lay down provisions governing the composition of the agency. Each ordinary member will be a part time member and shall hold office for five years on terms and conditions as laid down by me in agreement with the Minister for the Public Service. Sitting Members of the Houses of the Oireachtas are not eligible. Any member of the agency who is adjudged a bankrupt, or sentenced to imprisonment or convicted of felonies will cease to hold any office. Those are the main points that arise and it is up to the Deputy to make any points he wishes under amendment No. 71.
I expected this to be a complicated debate. It is a pity this Bill was not brought in in a more compact form to make it easier for Members of this House to participate in the discussion and to understand why the Bill is necessary. We all accept that a Bill giving equal opportunity to all irrespective of sex is desirable and the simpler that Bill when introduced the better for everybody. At the moment as I see it we are discussing amendment No. 1 in the name of the Minister, setting up the Employment Equality Agency. I need not refer further to it, I can do that by way of the amendments and under amendment No. 71 itself. Here I see a major departure from what I would like to see as a compact body to determine the cases that will be referred to it under this measure. If my amendments are taken in conjunction with amendment No. 71 which deals with the Employment Equality Agency it will be seen that the first amendment asks that in paragraph 2 the number referred to of ten ordinary members be reduced to six.
I see this as a desirable improvement in this agency. An agency of 11 people is too big to adjudicate on the type of matters that will be placed before it. All sides should be equally represented by ordinary membership on that committee. The chairman will also be a ministerial appointment. Thus under my proposal the Minister will have an opportunity of appointing three people to this agency. At some stage a quorum of five is referred to. Can the Minister explain how if 11 people are appointed to this body, and only five are necessary for a quorum to carry out the full functions of the agency it is necessary to have 11? I do not want the Minister to reply that in order to be sure of having five or six present it is necessary to appoint 11. If the people appointed are not in a position to attend reasonably regularly except in emergencies, these people are not fit to be appointed to such an agency. It is an important agency. If 11 people are appointed, seven at the pleasure of the Minister, it is not enough that six of that group may be absent and yet the business can go ahead normally.
This is a new agency which will be handling what undoubtedly will be delicate, difficult cases, initially at least, in relation to alleged discrimination in equal opportunity, in relation to advertising, and employment agencies and so on. Many of these matters will be of a very delicate nature. Who does the Minister intend to appoint? Why does the Minister need to appoint seven people to an 11 member agency? I do not believe the Minister is entitled to have the power to appoint so many people and yet to say that five will form a quorum for the purpose of the business of the agency. This is an admission by the Minister that there is no necessity for 11, except that it gives him an opportunity to appoint people that he may like to rest a political laurel or favour on. My second amendment states:
In paragraph 9 to delete "six, three of whom shall be representative of women's organisations" and substitute "two,".
In case anybody is not clear, it is the "six" that is being deleted. In other words, the appointment by the Minister of six people. The Schedule says that the remaining six, three of whom shall be representative of women's organisations shall be nominated by the Minister. I believe that the Minister should only have power to nominate two more, in the interests of the employers' representatives, the workers' representatives and in the interests of this agency working satisfactorily. The smaller the number appointed to such a committee the better. We all know that where committees have been set up the committee with the smaller membership, provided the attendance was reasonably good, was a far more effective committee than the committee with a large membership. A large number on a committee such as this, where quite a number of different points of view will be expressed, and where there may be confrontations on a very delicate issue, would not be desirable. The third amendment is that 50 per cent of the ordinary members shall be women. I was interested to hear the Minister say that he saw no validity in this point. I thought the Minister would have said that I should have assumed that both employers' representatives and workers' representatives were women. That is the answer I expected to hear. I need have no fears in that respect.
I take the point that the greatest champion of women's rights may well not be a woman, but regarding the Employment Equality Agency for the purpose of this Bill it is important that both workers and employers realise that under the Bill they have a responsibility to have 50 per cent. In other words the Minister's opinion that the man may be a better champion can be preserved by the workers' organisation or the employers' organisation nominating a man and a woman. This will solve the 50 per cent and will give him the opportunity of nominating one or two women as he sees fit. That is the way it will work more effectively.
Those three amendments are connected and on them there is another very important consideration. Amendment No. 71.7 reads:
The chairman shall be appointed by the Minister either in a whole-time or a part-time capacity and shall hold office for not more than five years ...
This Government are at the end of their tether and in a very short time there will be a changeover. It will be unfortunate for the Member from this side of the House who will have to assume the responsibilities of this Minister and will have to take over an agency consisting of 11 people most of whom will be politically opposed to the Member taking over if we do not have a fair representation on that agency. Amendment No. 71.8 reads:
The chairman shall be paid, out of moneys provided by the Oireachtas, such remuneration and allowances and expenses incurred by him as the Minister, with the consent of the Minister for the Public Service, may determine.
Therefore the chairman may be whole-time or part-time. The ordinary members may be part-time. There will be undoubtedly in the early stages quite a number of meetings and many points to be discussed. Is it in the best interests of this State at this time, with our economy as it is, to appoint 11 people or to appoint seven people? Here is a way we can save on four appointments, part-time maybe, but between remuneration for their part-time service and expenses for attendance we would be making a worth-while saving and yet we would have an agency capable of dealing with the points of the controversies that may be brought before them. For that reason I push very strongly the amendments to the Schedule.
The Schedule is long and there are many points in it that I must ask the Minister about. This is my first experience in opposition of seeing a new agency as such being set up. Will the Minister say that the points I will be making were contained in a previous legislation and are in line? The Minister seems to have fairly substantial powers under this Schedule with regard to this equality agency. For example, amendment No. 71.4 states:
The Minister may at any time remove the chairman from office.
That should be qualified. No Minister from either side should have that kind of blanket power at his pleasure or whim, to be able to remove a chairman doing an effective, fair and good job in that capacity. This kind of power being placed on Minister's shoulders is dangerous because it does not say that the chairman may be removed for lack of performance or because of a breach of regulations. It simply gives the Minister blanket power. This Government have removed one of the nation's finest soldiers from a position of trust as chairman of a body and replaced him by a man far less adequately equipped to deal with the Army pensions situation than that fine soldier was. How can we be sure that this kind of power placed on this Minister's shoulders cannot also be abused? Is that new or is it in line with previous legislation? If the answer is that it is in line with previous legislation I demand that at this stage we progress and that we amend that to mean that only under certain conditions can the Minister exercise this power.
Amendment No. 71.3 states:
The chairman may at any time resign his office by letter addressed to the Minister ...
Is this really necessary? Surely we live in a free society. Surely the Constitution preserves the right of the individual to decide if he wants to resign or if he wants to discontinue operating because his health prevents him or his time does not allow him or he does not like the position. I fail to see the necessity for that provision.
Amendment No. 71.5 states:
Where the chairman or an ordinary member of the Agency becomes a member of either House of the Oireachtas, he shall, upon his becoming entitled under the Standing Orders of the House to sit therein, cease to be the chairman or such ordinary member.
That is desirable.
There are many questions attached to this agency that must be answered by the Minister. We will be coming to other points on it and other amendments in the Bill.
I referred earlier to the quorum. Amendment No. 71.21 establishes that:
The quorum for a meeting of the Agency shall be five members.
We are appointing 11. This is wholly unnecessary from an effective point of view, from a cost point of view and from a fair distribution point of view, yet we say that any five of that 11 can deal with the business placed before that agency.
That covers my points on Amendment No. 71. Perhaps I should allow the Minister to comment on what I have said.
On the general question of a quorum a necessary element to have in any committee of people working together is that there be a certain minimum figure. That minimum figure not being reached at any meeting, no business may be transacted.
My feeling about this figure of 11 people on the agency governing body is that we require representation, obviously, from trade unions, employers' interests and women's organisations. If we look at the number of women's organisations in the country it is important that some places be set aside for them because it is their campaign over the years that has contributed largely to the fact that this House is legislating in this area today. I gave a good deal of consideration to the composition of the membership of the agency. I was concerned to provide a balanced group of representative persons who would be able to carry out the function assigned to the agency and the number was decided to meet that objective. I am anxious to encompass in the membership of the agency as wide a selection of the principal women's organisations as possible. Obviously, it is not possible to provide for all of them. That is why I believe the requirement that three should be reserved for women's organisations is important.
Deputy Fitzgerald made the point that there should be so many women in the agency. In deciding in advance that the sex of a person in the agency is an important guide to the person's dedication and suitability, we must be wary in case we fall into a kind of discrimination in reverse. I am against the philosophy of a token woman representative on any body. The idea may be put forward with sincerity, but one does not advance the cause of women in our society by suggesting that a woman must carry out any job or task. The principal philosophy behind the membership of the agency is that people should be chosen for the job on grounds of merit and ability to carry out the functions assigned to the agency, and not on grounds of sex.
I have no doubt the majority of the people in the agency will be women, but I do not think that should be the prime requirement. Members of the agency will be chosen for their suitability and ability to do the job. Appointing women on grounds of sex does not advance the cause of equal rights for women. When Deputy Fitzgerald made the point that so many places should be reserved for women, I am not suggesting he was not putting that idea forward in the best interests of women's equality but one could very easily fall into the trap of nominating women qua women. In the long term that may not be doing a service to the women's movement.
The Deputy asked about the composition of the Schedule, the powers, and so on. That is based on the relationship of the chairman to the Minister as set out in the instrument setting up the training authority. We can come back to that on Report Stage. I will be quite willing to swop ideas with the Deputy on that.
On the composition of the Schedule and where it came from, I thought that would possibly be the answer. This is a new type of Bill covering discrimination and we should look very carefully at the composition of the Schedule in this Bill setting up the Employment Equality Agency. I reserve the right to submit amendments on Report Stage to any paragraph or section of the Schedule.
I know the Minister was sincere in what he said but I would be inclined to assume from what he said that there were not enough women adequately and suitably qualified to be appointed to the agency. I agree that the prime qualification should be suitability. I am afraid I cannot be sure that will be the case while the Minister has power to nominate six women. He has very neatly and very cleverly used the fact that three will be from women's organisations. He has not said where the other three will come from and he has not said from what women's organisations they will come.
Many of the women's organisations have contributed immensely to the progress we are making, slow though it may have been over the past four years. To be fair, all of them cannot be represented. I have no doubt that, whatever three are selected, their political persuasion will be taken into consideration. I would have no objection to saying that two of the people appointed by him would be from two of the women's organisations. The Minister is arguing in two different directions. On the one hand he is saying it is important that three women should be appointed from women's organisations, and on the other hand he is saying the first essential for appointment must be suitability and qualifications. I agree with that.
I am sure the Minister did not intend to convey the impression that not enough suitably qualified, or prepared, or experienced women would be available. Basically, that was the line of argument he used to oppose the amendments I recommended to him. My amendments would effect an improvement in the Bill. I see absolutely no necessity for 11 rather than six members. On the argument about the quorum being five, I understand the point the Minister makes but we are not talking about a committee. We are talking about an agency with specific functions in relation to discriminatory acts under this legislation. It is not like an ordinary body being set up. A quorum of five can deal with all the aspects and yet we are appointing 11 members.
If workers' representatives are appointed to this body normally we will find that two such representatives will not be missing except in cases of emergency, or when they cannot make it for some reason. They will take their responsibilities seriously. The employers' representatives will be in the same position. They will take their responsibility seriously and will not be missing unless it is completely unavoidable or completely impossible for them to be there. Where will the missing people come from? They will come from the very big number of people being appointed by the Minister. That is one of the reasons why I object to six being appointed by the Minister. I am quite satisfied with the reduction from six to two and that those two, if the Minister so wishes, will be members of women's organisations. I see a difficulty for the Minister in how he will select two or even three of the organisations, because there are many more organisations who deserve to be recognised for the contribution they have made to the little progress we have had towards equal rights for women.
I see absolutely no reason why we must have ten members and a chairman on that body. No argument used by the Minister has convinced me that this is necessary. The functions assigned to the agency by this Bill are far-reaching for a new body. I believe functions are defined in the amendments, something I have not come across in previous legislation. From memory the word "functions" is defined by way of an amendment to include powers and duties. In other words, the agency we are appointing will have powers and duties assigned to them on the passing of this Bill.
This agency must be of the highest calibre, comprised of people with genuine and dedicated interest. I fully support the Minister on this and the initial qualifications. I also believe these qualifications can be found in both sexes but it will be somewhat amusing if we are to pass legislation setting up an agency under this Bill to eliminate discrimination when the only women's representatives we can be sure of having in the 11 people are the three members of the women's organisations mentioned by the Minister. If my amendments were accepted, we would have 50 per cent representation at least for women. I believe this to be a sensible development but we must be seen to be sincere in setting up this body and if we have 50 per cent representation for women among the ordinary members, then I think we would be setting up an agency that would be smaller, more appropriate and more effective and would cost less to the country than the 11 mentioned by the Minister where only three places are guaranteed to women.
I appeal very strongly to the Minister to accept my amendment particularly as regards the reduction of the number. I have not yet heard why there should be six appointees of the Minister. He has said that three of them will come from women's organisations. Why not go further and appoint all six from women's organisations? There are many more organisations than that. I am disappointed that the Minister has not accepted what I thought were obvious amendments. I think I have advanced many reasons in favour of these appointments. We are spending a lot of time on the agency; I think it is important; it is a new venture. On Report Stage I reserve the right to move amendments to any of the paragraphs in the Schedule.
Obviously, in setting up such a body one must impose some trust in the Minister of the day that he will carry out the duties imposed on him, that he will appoint people who will adequately discharge the functions assigned to the agency. That I propose to do and I presume any other Minister would seek to do likewise. I do not agree that it is necessary in the interests of the women's equality movement that any of our legislation should set down a fixed quota based on sex implying that the sex of the person is the criterion that must be uppermost. I have every confidence that women will be found for the majority of these posts but it would be to announce in advance one's fundamental feeling that women were not qualified for a task such as this if they were to form a fixed quota. I believe that giving a quota of appointments to women does not advance their cause and I believe that instead our criterion should be the effectiveness of the people to be nominated.
The Deputy is right in saying that there are a number of women's organisations. It would be impossible to cater for all of them but it is, I believe, correct that in apportioning places in the agency, the governing body, a certain number should be set aside for the women's organisations.
We come now to amendment No. 2.
No. We have a very complex group of amendments here. I think the Chair is at the disadvantage that there are a number of amendments——
We shall come to them in their turn. I will go through the amendments seriatim and we shall come to your amendments in due course and they will be put at that stage if required.
No, Sir. Just to fill you in on the picture: we are at the moment debating amendment No. 1, amendment No. 71 and my amendments to amendment No. 71, amendment No. 51, amendment No. 72 and amendment No. 50.
I am quite aware of all that.
I asked the Leas-Cheann Comhairle a question and he said we would take decisions on them.
In due course. The amendments are being debated together but we shall come to them again in the order set out on the Order Paper and the question will be put if the Deputy so wishes on each of the amendments.
When we come to No. 71, perhaps, in six months time——
I do not know when we will arrive at it but in due course. This is the procedure that has always been adopted in the House on matters of this kind.
I accept your ruling. I am the most co-operative Member of the House.
I appreciate that. I just want the Deputy to be satisfied that what is being done is the usual procedure. Amendment No. 1 has been agreed to. Amendment No. 2 is next and I observe that amendments Nos. 43 and 48 are related and I suggest that amendments Nos. 2, 43 and 48 be debated together with separate decisions if required.
I move amendment No. 2:
In page 2, between lines 22 and 23, to insert the following:
"‘dismissal' shall be taken to include the termination by an employee of his contract of employment with his employer (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract without giving such notice, or it was or would have been reasonable for him to do so, and ‘dismissed' shall be construed accordingly;".
The purpose of the amendment is to clarify that a dismissal, whether retaliatory or non-retaliatory, can include the concept of constructive dismissal, that is, those cases where the employee is forced to leave her job because of the compulsive nature, perhaps, of the circumstances of the relationship with the employer. There is a similar provision under the Unfair Dismissals Bill and the effect of amendment No. 48 is to make a similar provision under the Equal Pay Act. Amendment No. 43 arises as a consequence of amendment No. 2 since the concept of constructive dismissal applies to both types of dismissal, retaliatory and non-retaliatory.
I have no objection to this amendment. I am just trying to be sure about the consequential amendments. May I take it that in regard to those, while we are allowed to debate them together we are not taking a decision on them until we come to them?
When we come to them.
Why has the Minister defined dismissal in section 1 and why has he not included other definitions that I believe should form part of the definition section?
As the Deputy will appreciate, we did not have in the Equal Pay Acts at one stage this power of reinstatement. We have it now and we have it in the Unfair Dismissals Bill where the tribunal agrees that the person concerned was right to pursue the matter. There is that right of reinstatement. The concept of dismissals is referred to because it is obviously a very important element in equality employment legislation. It is referred to in other parts of the Bill before us and I and my officials thought it proper to define it at this point since it crops up so frequently.
I have already claimed credit for introducing the re-instatement aspect and we agree to amendment No. 2.
I move amendment No. 3:
In page 2, line 31, after "1941," to insert "an officer or servant of a harbour authority, health board, vocational educational committee or committee of agriculture,".
This amendment is to ensure that employees of harbour authorities, health boards, vocational education committees and committees of agriculture come under this Bill. The parliamentary draftsman was doubtful that any of them came under the description of "officer or servant of a local authority". On his advice we inserted this amendment to ensure that they were included.
This is one of the amendments I welcome. The Minister has gone part of the way but not as far as I expected him to go. He is obviously closing the gap that existed in this Bill. He is covering the officer or servant of a local authority who came within the meaning of the Local Government Act, 1941. Here he has included servants or officers of a harbour authority, health board, vocational education committee or committee of agriculture. This is progress from the Bill as originally introduced.
We must realise that there are more amendments to this Bill than there are sections. Why did the Minister not include the Garda Síochána and prison officers? In my opinion these are two glaring omissions from the definition of "employee" and should be included. I have deliberately not referred to the Defence Forces because I could see difficulties being created there. However I see no reason why the Garda Síochána and the prison officers have not been included in this amendment.
We will deal with this under section 10. I suggest we might more appropriately discuss it at that point.
I have no objection to this amendment.
I move amendment No. 3a:
In page 2, subsection (1), between lines 32 and 33 to insert the following:
"‘employer' means the person or body of persons of the trade, business, industry, profession or any activity carried on by the person or body of persons, whether corporate or incorporate, whether registered in the State or not by whom the employee is (or was in a case where the employment has ceased) under a contract."
I submitted this amendment because I failed to see why "employer" has not been defined in this Bill when it has been defined in other social legislation. No doubt the Minister has a very good reason for doing this but it seemed to me to be an omission. Two sectors of the social spectrum are included. We have just been discussing the definition of "employee" and hopefully we will have an opportunity later of discussing an extension of it to include others. Why is "employer" not defined in this Bill as it is in other social legislation?
We did not consider it necessary to define "employer". The term "employee" is defined in a comprehensive way. That carries the conclusion that "employer" is defined in relationship to the "employee" but there is no matter of principle here and on Report Stage perhaps we could come back with a definition of "employer". I will have a look at this point again.
Is that satisfactory?
Yes, subject to the usual reservations for Report Stage.
Amendment No. 4 is consequential on amendments Nos. 56 and 57, and amendments Nos. 58, 59 and 60 are related. I suggest therefore that they be debated together, separate decisions being taken if necessary.
Do we have to take them together, because it is very confusing at this stage? I am not objecting to taking them together but——
If we did not take them together there would be serious duplication of debate.
Supposing we agreed with you, Sir, that our debate could be curtailed on No. 4 and confined to the other amendments, would you accept that suggestion?
I hesitate to depart from the normal practice when dealing with the Committee Stage of a Bill.
I am trying to be helpful.
The Chair is obliged under Standing Orders to go through the Bill line by line, section by section and amendments in order. To expect the Chair to jump from one amendment to a later amendment would lead to chaos.
I move amendment No. 4:
In page 2, between lines 36 and 37, to insert the following:
"‘functions' includes powers and duties;
‘investigation' means an investigation under section 32;".
These amendments empower the agency to conduct formal investigations for any purposes connected with the functions as defined in amendments Nos. 52 and 53. Amendment No. 4 defines functions and is self-explanatory. Amendment No. 56 enables the agency on its own initiative or at my request to conduct formal investigations for any purposes connected with its functions. Amendment No. 57 stipulates the requirements which must be fulfilled before the agency can embark on a formal investigation. Amendment No. 58 provides that the agency may for the purposes of a formal investigation serve notice on a person requiring him to produce relevant information either in the form of documents or by giving oral evidence. Amendment No. 59 specifies the circumstances in which a person would infringe the statutory requirements provided for a formal investigation conducted by the agency.
We are taking a number of amendments together. I do not intend to deal at any length with amendment No. 4, which merely defines "functions" as including "the powers and duties" imposed on this agency. I believe these powers and duties will impose a very heavy responsibility on members of this agency. The Minister has a duty to tell us more about the investigation.
Amendment No. 56 gives the agency power to conduct investigations. Subsection (3) of the amendment reads:
An investigation may be conducted by one or more than one member of the Agency delegated by the agency for this purpose.
I would like the Minister to elaborate on that. What specifically may that investigation by one member entail? How much power is being assigned to that one member in certain circumstances? Subsection (2) says that "in the conduct of a particular investigation the Agency may, with the approval of the Minister, employ one or more than one person having qualifications which in the opinion of the Agency relate to that investigation". That is understandable. In other words, they will have experts available. To what extent does the Minister see one person carrying out an investigation?
Subsection (4) is the one I query most. It says:
An investigation shall not be conducted in relation to the selection by the Local Appointments Commission or the Civil Service Commission of a person for appointment to an office or position.
Even if I were prepared to accept— and for the purposes of making my point I am prepared to accept it— that the Civil Service Commission be excluded, the powers of the Local Appointments Commission are very far-reaching. In our definition of "dismissal" as amended, we are talking about officers or servants of a local authority a health board a vocational education committee or a committee of agriculture.
Is it not true to say that the Local Appointments Commission are responsible for the appointment of very many people, particularly the officers of local authorities? Are we now excluding the people so appointed or are we saying that this equality agency cannot examine or investigate appointments made? Appointments and promotions will be very closely linked, as those of us who are familiar with the local authority scene know very well. We will find an assistant county engineer probably applying to the Local Appointments Commission for a position as chief assistant county engineer and the appointment being made by that body. Is the person so appointed excluded from investigation in that case? I am not happy with subsection (4) of this amendment. I have not put down an amendment on it at this stage because I thought on Report Stage we might be able to tease out the weakness I believe to be in it. The Minister may well have a valid answer to the point I am making. I am concerned about that kind of appointment because we would be including some officers of local authorities and excluding others. In my opinion this would be undesirable. This applies equally to health boards and other bodies. I am citing the case of the local authority in support of my point of view.
Perhaps we will come back to this on Report Stage. We will be discussing it again on section 10.
Yes, we will. I am quite prepared to agree to that. We will have the opportunity of discussing it under section 10 and I am reserving the right to move an amendment on Report Stage if necessary.
Regarding amendment No. 57, here we are talking about the terms of reference for investigation. There are quite a number of important amendments tied up with amendment No. 4. This is why I thought that for expediency we could have dealt with these on another occasion. This is not possible and we have to comply with this. We must look at the terms of reference for investigation.
Amendment No. 57 states:
In page 11, before section 27, to insert the following new section:
33. —The Agency shall not conduct an investigation until the following requirements have been complied with:
(a) terms of reference for the investigation shall be drawn up by the Agency or, if the investigation is one which the Minister has required the Agency to conduct, by the Minister after consultation with the Agency;
(b) notice of intention to conduct an investigation shall be given by the Agency by a notice published in at least one daily newspaper circulating in the State unless the terms of reference refer to a specified person in which case the notice shall be given in writing to that person.".
I want the Minister to elaborate on what is contained in paragraph (b). What does he mean by an investigation being published in a daily newspaper? Is that the type of investigation that one person can be appointed from the agency to do? An investigation in relation to an individual I take to mean in relation to an employer or employee. I should like the Minister to elaborate on the question of the intention to conduct the investigation and how it may be conducted.
As the Deputy knows, the powers of the agency are both investigative and educative and obviously by publishing the intention of investigation this would be in conformity with the functions assigned to the agency. Where, of course, terms of reference of the particular investigation named particular persons or an organisation obviously these would have to be named and invited beforehand to such investigation.
There is a lot of content in amendment No. 58 and it basically refers to the agency's power to obtain information and documentation and summon witnesses. This is very necessary and important to ensure that the investigation would be worth something. There are questions I want to ask about the amendment itself. Paragraph (2) of amendment No. 58 states:
A notice under subsection (1) shall not be delivered unless the Agency has obtained the consent of the Minister to the delivery, or unless the terms of reference for the investigation specify that the Agency believes that a person named in the terms of reference——
(a) has discriminated or is discriminating,
They obtain the consent of the Minister. Is this really necessary if the agency are convinced that a person or firm are discriminating? Surely the agency should have the power to operate on their own?
On a point of order, may I draw the attention of the Ceann Comhairle to the order made this morning and to the fact that the time specified in that order has now passed by several minutes? What alternative arrangements I wonder, can be made?
I must apologise to the House that we did not commence Private Members' Business at the time mentioned by the Deputy. I presumed it was the normal time of 7 p.m., and I must apologise to the House for inadvertently not commencing the business at the time mentioned. Private Members' Business should have commenced earlier than normal and the Chair did not advert to that fact. Perhaps Deputy Fitzgerald would report progress?
I am always willing to co-operate with the Chair.