Amendment No. 1 in the name of Deputy Desmond has been ruled out of order, as has been amendment No. 2. Amendment No. 3 is in the name of the Minister. Amendment No. 4 is related and both amendments may be debated together.
Local Government (Superannuation) (No. 2) Bill, 1979 [Seanad]: Report and Final Stages.
I move amendment No. 3:
In page 8, lines 18 and 19, to delete "and may provide that the decision of the Minister on any such question shall be final".
I have looked again at section 5 particularly with reference to the question of whether under subsection (2) regulations could make the Minister the final arbiter of the saver in subsection (4) and also I have looked again at the right of appeal in subsection (2). In regard to the first question, that is, the question of the Minister being the final arbiter of the saver in subsection (5), I wish to make it clear that this is not the case. I am advised legally that the provisions of subsection (4) place an absolute bar on the Minister from exercising his power in making a scheme of regulations under the Bill in such a manner as would contravene the saver in the subsection. The position is that in the exercise of his power to make a scheme of regulations the Minister would be required legally to act in accordance with the saver. In making a scheme of regulations the Minister would accordingly be debarred by virtue of subsection (4) from providing for superannuation conditions which were less favourable in the case of relevant persons than their existing superannuation conditions, save on the exercise of an option on their part for such conditions. If, consequently, a question should arise as to whether the new conditions were less favourable than the existing conditions, the matter would be open to the judgment of the courts.
Independent of the provisions of subsection (2), I am advised further that the only questions in respect of which the Minister could provide for an appellate function under subsection (2) would be questions arising from within the context of the scheme or regulations made under the Bill. The question of whether the provisions were less favourable than the superannuation conditions set out elsewhere would not be appropriate to certain appeal.
Regarding the proposed right under subsection (2), the appeals position under existing law is that, while there is not specific provision for recourse to the courts, neither is there a provision that a decision given on appeal by the Minister shall be final. Therefore, subsection (2) as drafted goes beyond the present law by providing that a decision given by the Minister determining a question arising under or by virtue of the making of a scheme or of regulations shall be final. The amendment by deleting this provision in effect continues the existing position.
(Cavan-Monaghan): I raised a number of points on this section on the last occasion because I was unhappy about the powers which I thought the Minister was taking in subsection (4) and, particularly, in subsection (5). I considered that so far as subsection (4) was concerned, the Minister had an argument because that subsection provides that the Minister shall not exercise the power to impose a scheme that is less favourable than an existing scheme. I conceded that the Minister had an argument in saying that the subsection imposed a statutory obligation on him not to impose a less favourable scheme on employees. I am glad to have the assurance of the Minister that subsection (4) has been reconsidered by his advisers and that he has been assured by them that his original interpretation as given to the House on Committee Stage is correct.
I am happy enough now that that interpretation is correct and I accept the Minister's assurance.
However, I said on the last occasion that there should be no doubt about subsection (2) to which I objected because it appeared to me that the Minister was taking on himself the appellate jurisdiction which would enable him to decide on appeal points arising out of regulations made by him. I said that in my opinion there could not be any argument about that. It is interesting now to hear from the Minister of State that on checking up on the position he finds that section 5 probably goes further than the existing law. I know that these two amendments exclude from subsection (2) the very words which I regarded as particularly objectionable. These were the words to the effect that the regulations might provide that the decision of the Minister on any such question as I have been talking about should be final. Also, being removed is the provision that the decision pursuant to the scheme shall be final. I regard these amendments as being some improvement on the section as drafted and I am obliged to the Minister for having reconsidered the matter.
I move amendment No. 4:
In page 8, to delete lines 26 to 32 and substitute the following:
"(ii) for the determination by such a Minister or by a person of such a class or description of any such question which is of a class or description so specified and for the determination by the Minister of any other such question.".
Fifth Stage now?
Agreed to take Fifth Stage today.
(Cavan-Monaghan): We have had quite a lengthy discussion on this Bill, particularly on Committee Stage. It is only right that a Bill of this nature be fully debated in the Houses of the Oireachtas. It is a Bill enabling the Minister for the Environment to initiate superannuation schemes and provide for the payment of gratuities to employees of certain bodies, largely those of local authorities. I think health boards are also being brought under its provisions, and other bodies acting as agents for local authorities.
A Bill to regularise the position in regard to these superannuation schemes and the payment of gratuities and pensions is long overdue. I want to put on record in the strongest possible terms that I object to the procedure adopted on this Bill, that is, that of validating schemes drawn-up and pensions and gratuities that have been paid irregularly, without the authority of the Houses of the Oireachtas, as far back as 12 years ago. That is a dangerous procedure; it is that of ruling by Departmental circular because the schemes about which I am talking and the pensions and gratuities paid have been done by virtue of official Departmental circular. In this type of democracy schemes should be initiated and payments made only by the authority of this House and not in anticipation of it. Exact examples do not come to mind at present but there is more and more of a drift or tendency to govern by official circular in anticipation of legislation being passed by this House. When I made that point before the Minister said time and again that everybody was delighted with the pensions paid under the schemes drawn up. I concede that; of course they were, but what I object to is that these schemes were all drawn up without this House being consulted, without the people who get their authority from the electorate and who are authorised to decide these things being consulted.
All of that could be avoided by a short, enabling Bill, lasting for 12 months or two years, giving the Minister fairly blanket authority for a limited period with an obligation to report back to this House. I cannot see any difficulty about that. I do not think any reasonable Opposition would object to that. Indeed any Opposition, whether it be Fine Gael and Labour or a Fianna Fáil Opposition, would be guilty of a dereliction of duty if they sat here year after year allowing local authorities and other bodies to act without any authority, thereby encouraging Department of the Environment auditors, who are the watchdogs of the public purse and, as I understand it, the agents of the Comptroller and Auditor General, to turn a blind eye on these irregular transactions in anticipation of legislation which may come some time, or may never come, on the authority of an official circular from the Department of the Environment. Instead of this practice developing and there being more of this sort of Administration of public affairs, I hope we have seen the end of it. As long as I am in this House, if I become aware of local authorities or Departments of State operating irregularly in anticipation of authority forthcoming at some date in the future, I will go on record as objecting to it.
This Bill has been well debated through all Stages. I do not want to repeat anything I said before. Regulations will now be made and a speeding up effected of the necessary improvements.
I am glad this Bill is about to be passed here because it is in the best interests of all those who have got and who will receive these benefits.
This Bill, which is considered by virtue of Article 20.2.20 of the Constitution as a Bill initiated in the Dáil, to be sent to Seanad Éireann.