There is an amendment, No. 1, to this section in the name of the Minister. Amendments Nos. 2 and 8 are cognate. It is proposed, therefore, with the agreement of the House, to take for discussion purposes amendments Nos, 1, 2 and 8.
Pensions Bill, 1990: Committee Stage.
I move amendment No. 1:
In page 8, subsection (1), line 10, after "Chapter II", to insert "of Part I".
I move amendment No. 2:
In page 8, subsection (1), line 12, after "Chapter II", to insert "of Part I".
Amendment No. 3 is consequential on amendment Nos. 56, and amendment No. 57 is an alternative to amendment No. 56. It is proposed, therefore, for discussion purposes to take amendments Nos. 3, 56 and 59 together.
I move amendment No. 3:
In page 9, subsection (1), line 4, to delete "61 and 62" and substitute "61, 62 and 63".
I made it clear on Second Stage that it was my intention to seek a way of providing statutory requirements regarding member participation in the appointment of trustees which would be broadly acceptable to both employers and members of schemes. Accordingly, in the light of the consultations with the Irish Congress of Trade Unions and the FIE on this matter, I propose to provide by way of this amendment that the Minister for Social Welfare may by regulations grant members of a specified class or classes of funded schemes the right to select a specified number of persons to be trustees of schemes.
I intend to ask the new Statutory Pensions Board, as a priority, to encourage employers on a voluntary basis to provide for member participation in the appointment of trustees with particular reference to the procedures to give effect to this which would be most acceptable to both employers and members. This would be very much in line with the functions of the board as set out in section 10 of the Bill regarding the issuing of guidelines on the duties and responsibilities of trustees, codes of practice and standards and their implementation.
I would attach particular importance in this context to the board's function with regard to encouraging the provision of appropriate training facilities for trustees. It is also my intention to ask the board to report to me before the end of 1992 on the necessary statutory requirements in this regard. On the basis of that report regulations will be introduced as provided for in this amendment early in 1993 which will come into force with effect from January 1994, that is, three years after the main provisions of the Bill come into force. This is in line with the majority recommendation of the National Pensions Board.
I am confident that this whole process will result in member participation in the appointment of trustees being achieved by way of consensus between employers and members. There are two aspects to this issue which I will be asking the new pensions board to examine in particular. The National Pensions Board in their report stated that the right to member participation in the appointment of trustees should be confined to schemes with more than 50 members. I believe that this is an arbitrary limit and I will be asking the new board to examine ways in which members of all funded schemes, irrespective of the size of the scheme, can be given rights to participate in the appointment of trustees. While the pensions board suggested that this might only apply to schemes with over 50 members, I am asking the new board to examine ways in which the members of all the funded schemes can be given the same opportunity to participate in the appointment of trustees.
I would also wish to emphasise that participation by members in the appointment of trustees does not necessarily mean that the trustees chosen have to be members of the scheme. In fact, in most cases members may prefer to have professional trustees appointed on their behalf who would have the necessary expertise in this area. Such trustees would be accountable to the members and such accountability could be exercised through pension committees composed of members of the schemes.
The National Pensions Board in their report stated that structures such as pension committees should be encouraged. It is not, therefore, just a question of saying that members should be able to appoint members; members should be able to appoint whom they like to be their representatives as trustees and that is what I am providing for. I believe this approach may resolve many of the difficulties employers have in relation to the matter. It would ensure that persons appointed would have the necessary expertise and would confine themselves to ensuring that the schemes are properly administered in accordance with the scheme rules and the statutory requirements.
Questions regarding levels of benefits and the general adequacy of the pension arrangements would be separate issues for resolution in an industrial relations context. The appointment of professional trustees on behalf of the members is also likely to be the best approach in situations where there may be difficulty in various categories of workers in a company being able to reach agreement on what members of the scheme should be chosen for appointment as trustees.
I am a little surprised that we are taking these issues which I thought would be dealt with much later. Because of the lateness of the Minister's amendments I did not see them until ten or 15 minutes before I came in and for various other reasons they were only available this morning. I am surprised that we will be dealing with the whole issue of member trustees as this stage. If the change in the definition is accepted as this stage where do the other amendments put down by me and other Deputies stand? If this amendment is passed will they automatically fall?
What we are discussing now is section 2 and its amendment. It is on that the question will be put. We have agreed for discussion purposes to discuss amendments Nos. 56 and 57. We will not have a further discussion on those later but there will be a separate question and then the section to which they refer will be up for discussion as amended. At the moment we are discussing all but we will deal exclusively then with amendment No. 3.
Thank you for that. I am immensely reassured. I welcome the Minister's details of the changes and his thinking in relation to them. I am a little concerned that it is still a question that the Minister "may" make regulations. He is giving himself a power and the issue is still cloudy. I know it is the Minister's hope that in three years time he will make such regulations. However it would still be open to the kind of interventions that led to him not including it in the Bill as published largely because of the concerns of employers. While giving these concerns serious attention I believe many of them are unfounded in view of the reality of the experience of member trustees on the ground. Where schemes have member trustees, who do not have to be members of the scheme but represent the members of the scheme, they operate extremely well already; they are very successful and are an example of worker democracy in practice and I do not share the hesitancy that is still an element of the Minister's proposals in that it is not included as a right in this Bill. It is wrong that it is not being included as a right and that it is left to a Minister to decide. The Minister's thinking on this issue, following the Second Stage debate, is clear and he will be aware that it is our view that we should make a firm commitment in regard to the appointment of trustees. The Minister should bear in mind that many issues remain to be dealt with in the regulations such as electoral procedures and so on.
On Second Stage the Minister said that the employers' concerns were found to be valid in regard to schemes where there had been no tradition of communication. He accepted that in such instances it might be difficult to cope with a change overnight to a system of member trustees as a right and it might lead to this issue being fought out on what some employers have described as a battleground. Nobody wants to see that taking place and there is plenty of time for both sides to get to know what is involved in being a trustee of a pension fund. Certainly, it is not an issue that should be the subject of an industrial relations dispute because everybody shares the same concern, the proper management and success of a pension fund. I welcome the fact that the Minister has gone some distance in regard to this but I regret that he has not given us an indication of his intent. It is clear that since the National Pensions Board reported the Minister was got at by those who were against the change and, as a result, the Bill as drafted did not contain this proposal. I accept that it has been included since but I am concerned that the commitment may be watered down. Three years later the Minister may feel that it is not appropriate to introduce the appropriate regulations and for that reason I would like to see this provision tied into the Bill.
The Minister's amendments are a step forward because the original Bill failed to provide for the participation of members in the appointment of trustees and that cast a serious doubt on the stated purpose of the Bill. The Irish Congress of Trade Unions, with whom we had discussions, were at pains to point out that if the provision was not made obligatory the whole thrust of the Bill would be lost. To exclude members from the limited form of participation in the management of their own pension funds would run counter to the overall thrust of the Bill. I welcome the Minister's amendment and I commend Deputy Byrne who has produced a more positive amendment, No. 57.
The current experience shows that where membership trustees exist they have proved positive and enhanced the confidence of the members of the scheme. The existing pensions board, set up by the former Deputy Barry Desmond when he was Minister for Health, reached the conclusion after lengthy discussion that that type of regulation was necessary. Their final recommendation took account of the point of view of employers and it also reflected that there would have to be some process for members to appoint either one of themselves or experts representing them as trustees. In this legislation it is important that we achieve a balance between the employer and the employee. We are concerned about the rights of employees because in many pension schemes up to now their rights were not always recognised.Certainly, their rights were not enshrined in legislation. After many arguments, including positive contributions by some employers advocating this process, there was a consensus that a provision should be included in the Bill.
While the Minister is going down that road he is retaining a certain amount of ministerial discretion. I accept that the parliamentary draftsman always prefers to use the word "may" instead of "shall." For years I have listened to the argument that the word "may" is a strong word and that it is presumed that when a Bill states that a Minister "may" do something it is presumed that he will do it. Indeed, the Minister for Social Welfare has a good record for carrying out his promises. However, Deputy Byrne goes further in seeking to make it obligatory on the Minister, or any future Minister, to lay down guidelines in regard to funding and in regard to the election and participation of trustees.
It is important that we should commence the Committee Stage debate in a proper manner. The Minister has gone some of the way towards meeting the views of Members and of the Irish Congress of Trade Unions. However, I am inclined to support amendment No. 57, tabled by Deputy Byrne, because it is more positive. I do not have any objection to the Minister's technical amendments.
The Minister has put the cat among the pigeons and made a complex Bill more complicated by introducing the question of trustees which I had hoped would be dealt with on a later section. I have obtained a copy of the first report of the National Pensions Board and other documents. In practice we are talking about pensions schemes which, on the Minister's own admission, are huge in the context of the funds available.The massive sum of £10 billion — the current value of the pension funds — is accumulating rapidly as the annual contributions are £500 million and the investment income yields an annual income of £600 million. It is a very valuable fund which is increasing as a result of annual contributions from the workers and the employers.
Everybody agrees that there are two main factors involved in the accumulation of this massive sum of money. The funds are made up of contributions from working men and women, in the main from their salaries, and the other contribution is by the employers. Logically, therefore, the employers and the workers should have a say as trustees in the running of the scheme. The employers and the workers should be in a position to oversee, direct and assist in the growth of these schemes, perhaps by directing investment policy. On reading the Bill, it was a major setback to discover that employee representation is not covered in a statutory way by the Minister. The National Pensions Board did a lot of work in this area and made recommendations and our amendments, in the main, follow the thrust of those recommendations. The failure to make provision in the Bill for the participation of members in the appointment of trustees casts serious doubt on its stated purpose, which is to introduce major reform in this area.
Unfortunately, many workers had to proceed on the basis of the 1888 Act — I think that was the year — and we, sadly, saw former workers of H. Williams having to go to the High Court, with all the expense that entails, to remove trustees. We never want to see a repeat of these circumstances. Excluding members from this limited form of participation in the management of their pension funds is contrary to the overall thrust of the Bill. Deputy Ferris made the point that where member trusteeship exists in some of the many schemes it is a positive and constructive experience which enhances workers' confidence and leads to a greater level of interest. It is very important to recognise that when people are contributing to a pension scheme they should be involved in it.
The National Pensions Board issued recommendations after lengthy consideration of all the arguments, including those put forward by the employers. Their final recommendation was a compromise which took account of the reservations and concerns expressed by them, which is reflected in the very restrictive nature of the recommendations.The Minister gave fulsome praise to the National Pensions Board for their excellent work and Members on these benches agreed with his remarks. May I quote an extract from the recommendations of the board?
It is in order provided it is not a very long reading.
I will quote from page 87 of the first report of the board on the appointment of trustees:
For the purposes of this report a member trustee is a trustee nominated by the members in accordance with the procedures set out below. Such trustee need not be a member of the scheme and may be a corporate body. An employer trustee is a trustee nominated by the employer — and may also be a corporate body. When appointed the duties and responsibilities of member and employer trustees would be identical... Our conclusions on this issue were not unanimous. We all agreed that the participation of members in the appointment of trustees is a desirable objective but we differed in our views as to whether it should be made compulsorily available for certain schemes. A majority of Board members supported the view that the commitment of members would be improved and their long term interest best served by providing them with "statutory rights" in relation to the appointment of trustees.
Our amendments seek to give workers the statutory right to membership by way of trusteeship of the pension schemes. They went on to say that a minority of board members, however, considered that the concept of member trusteeship should be encouraged only through voluntary agreement between employers and members.
The National Pensions Board consist of approximately 20 talented people who are expert in their own fields. They had the tortuous task of familiarising themselves with the existing legislation. They recognised its inadequacy because, in many cases, the trust laws were not formulated with pensions in mind. The opposition by employers to members as trustees does not stand up and their arguments are not convincing. I have already said that where member trustees exist the experience has been a very positive one and indeed that view has been supported by some employers. For example, the CIF ran a very successful pensions scheme and, as a carpenter, I was for many years a member of it. They felt that worker trustees nominated by the members of the union were very important and, as employers, they gave full support to that concept. Indeed, all the representatives from the pensions industry supported this view, based on their own experience.
I seek an amendment to the Bill which will provide for the participation of members in the appointment of trustees. I will be reverting to this now that I have been taken by surprise that we have reached this amendment so quickly.
Deputies will realise that always I wanted there to be member trustees. The National Pensions Board proposed that there should be member trustees but not for three years. We are meeting that recommendation in what we are now doing. Deputy Byrne mentioned that there are 20 members on the board but, within that 20, there are three employer members only. On the one hand there are the trade union representatives and, on the other, the employer representatives, both directly involved. They are the two groups with which I am dealing in this regard. I have had further discussions with both sides. No difficulty will arise in the case of a company which has had a pensions scheme in operation for a long time and that has trustee members; there will be no difficulty at all experienced in that area. Overall they are not compulsory schemes. They are not something in respect of which I can stipulate statutorily: one has to have an occupational pensions scheme, that statutorily one must have member trustees, or whatever. We are doing what the National Pensions Board recommended which was to give them — a very competent body — extra powers. We are appointing the type of board they wish to have created and allowing them to extend, on a voluntary basis, the participation of members as trustees, or appointment by the members of people whom they consider suitable to represent them as trustees. There is no conflict about this. It is a question of doing it in harmony which is what has been happening between ICTU and the employers.
Since the Bill was circulated there was an opportunity provided for further discussion which has taken place between employers and the trade unions. Of course, I have had discussions with both sides. The main concern of ICTU was that, when it came to implementing the provisions, if they were not happy with the degree of implementation after the three years, it would be possible — without amending the Act — to take appropriate action. They accept the bona fides of the present and successive Governments. They said they would like to see me take power in this Bill, by regulation to do what is necessary bearing in mind the advice forthcoming from the National Pensions Board, the competent authority in that area. It is within that context I am introducing my amendment which has been designed to meet all those circumstances, allowing the people involved work in harmony. The House should not forget that they do not have to work in harmony; they do not have to continue to extend these schemes and, if we begin to place strictures on them, no more schemes may come into being. The ICTU realise that it is a question of striking a balance while, at the same time, progressing.
The whole purpose of the Bill was to provide the types of safeguards — now incorporated in it — and discussed on Second Stage. We are now going further, first, to provide for the establishment of the board and, second, to ensure that the power is available to me to be used if and when necessary. The approximate time scale for implementation is that recommended by the National Pensions Board. I do not want to depart from or frustrate the harmony generated between the two if at all possible. Therefore, we are taking the steps suggested. I must stress that both employers and trade unions are in agreement on this. We have advanced a step further; they are happy to proceed on this basis, which constitutes an advance on the circumstances prevailing at the time the Bill's was published. We can trust the board to continue with the work they say they must undertake anyway. Second we are providing power in this Bill for the making of such regulations if and when that is felt necessary. Therefore it will be evident that we are taking a clearly agreed approach.
There is a number of problemsvis-ávis Deputy Byrne's amendment No. 57. First it refers to any funded scheme having 50 members or more which was contained in the original report of the board. We have now gone further. We know it should apply to fewer than 50 members. I am leaving it open because I want the board to continue with their work. We want the provisions applicable to every funded scheme if at all possible. No doubt Deputy Byrne is now aware that that is my approach.
My amendment provides a fair amount of scope in regard to the kinds of people who can be appointed to represent members of the schemes, something which has been generally welcomed. Indeed I should say my amendment was tabled after considerable thought, consideration and discussion. It is well balanced in regard to what we are endeavouring to achieve. I know that is what Deputies on the other side of the House are endeavouring to achieve also.
Subsection (3) of Deputy Byrne's amendment reads:
Where it is proposed to make regulations under this section, a draft of the regulations shall be laid before each of the Houses of the Oireachtas, and shall not come into effect until a motion approving of the draft has been passed by each such House.".
I contend that would merely have the effect of delaying any decision being taken and would not be necessary. Members will have 21 sitting days within which to raise the matter in either House whereas, if they are not unduly concerned, the regulation then comes into operation. I know that Deputy Byrne seems to table such amendments habitually.I should say that all they tend to do is tie a Minister's hands and, in practice, render matters more inefficient; that is the reality. We want to get away from that. There is the safeguard that, if somebody is unhappy with a regulation being proposed, it should be remembered that they are circulated to everybody, will appear inIris Oifigiúil, will be placed on the table of the House, when Members will be afforded an opportunity to propose any change therein.
Deputies may talk about the report. I should say the man who wrote that report is sitting beside me and put more work than anybody else into its publication. We have obtained a lot of expert advice in drafting this amendment, which is designed to meet the requirements as discussed on Second Stage. We can go back and have it changed if the Deputies so wish but I would not be in favour of that because I believe this amendment is well designed for its purpose.
The Deputy referred to the provision whereby the Minister shall, as against may, provide. Deputy Ferris is right in that the draftsmen are not in favour of the word shall. If we are going to say the Minister shall provide, we would have to give a date by which time he should do so. How do you know what date to put down? All we would be saying is we do not trust the National Pensions Board and that they are not going to come up with the right ideas. If I appoint a chief executive of the National Pensions Board and ask him to do something by a certain date, he may not be able to do it until a few days later or a month later. As Deputy Ferris has said, that is generally why the word "may" is used. If the Deputies wish, I will reconsider this matter because I appreciate their concerns.Deputy Byrne in particular keeps coming back to this question. He wants to see the word "shall" because he does not believe anything will happen otherwise.Most things happen by agreement, especially nowadays where there is aProgramme for National Recovery, a Central Review Committee and so on. As a safeguard, we are taking the power here to immediately take action at any time that is considered appropriate. I think that is a good way to approach the issue, but I will certainly consider before Report Stage the question of “shall” as against “may”.
I would like to thank the Minister for his further moves on the matter. Having had a closer look at his amendment, I appreciate that it includes substantial refinements that are welcome, particularly as regards subsection (2) (a) and the limitation of 50 members. There is very good reason for not including a date, but if you intend to do something, you set down a date by which time it should be done. That would strengthen this provision and would certainly meet my reservations. I suggest we should set down a period of five years. In other sections we have specified that within ten years certain arrangements must come into play but I think five years would be an appropriate time by which arrangements must be made for appointment of member trustees and so on. The "shall" provision would not even achieve that because it is open-ended. The Minister said in his reply that he could not tell people to appoint member trustees. We are telling them to do a lot of things and we certainly can, in this legislation, tell them to appoint member trustees.
But there is a limit. There is no obligation on them to set up a scheme in the first place. This is a real fear.
I appreciate that but from my discussions with people involved, the fear in reality is unfounded. We can make too much of this matter. For example, I met a member trustee recently who is in name a member trustee but it means nothing to him because there are no regular meetings and no information is given about the fund.
Penalties will be imposed after this Bill has been passed. He had better know about the meetings.
While we have clearly set up the board and propose penalties for not having information, until we see the regulations that the board will establish in relation to the appointment of trustees, we do not know what kind of restrictions will be put on the regularity of meetings, the kind of information they must have and so on.
The Minister mentioned the question of regulations under this Bill. Until a lot of these areas have been fleshed out, the whole impact of the Bill will not be known. It is quite clear that unless members become very much more informed about pension schemes, they will not be particularly well protected. Even if the trustees provide them with the reports, unless they have developed an active, aggressive and detailed knowledge of the matter and are able to use the information that is given to them, they will not be protected. I know that many ordinary members of schemes believe that when we talk about member trustees, we are talking about one of the lads or lassies becoming a member trustee. Those who have been involved with schemes know that may not be the best way of proceeding and that you would be better served by appointing somebody with more expert knowledge. That is specified quite clearly in the Minister's proposal and is welcome. I think the reason the Minister has not specified a date and favours the word "may" is that we have taken a softly, softly approach and are hesitating on the matter.
If we fudge the issue of member trustees, members of schemes might fear that people are trying to hide something.
Most of these schemes are run by administrators and professionals. The vast bulk of the schemes are of a medium to small size and are not run in-house but are farmed out to professional pension trust bodies who run them. A lot of the fear is based neither on reality nor on practice. It is interesting that the in-house schemes are by and large those which have developed the system of member trustees. They are the ones that have been dealing hands on with the employees for a long time. A lot of the fear is based on a lack of thinking out of the position. The Minister has said there is real concern about these fears. If he could convince me that they might interfere with the setting up of schemes, I might be willing to accept his slightly more softly, softly approach, although he has gone a great distance on this.
As I have said, the whole issue of trustees will continue to be vague. I received a letter from a person who belongs to a pensions scheme which circulates a booklet to each member with information to the effect that committees of management elect managers of the scheme, the systems of appointment of trustees and so on. All these matters will determine the success of the Bill. We should not wait for the National Pensions Board to make their regulations; we should specify these matters in the amendments to Part I. The issue of trustees is one that remains to be fleshed out and unless we get other areas right, member trustees will be of a limited value.
I would ask the Minister to develop the point he raised in relation to the genuine fear. Does he believe that fear is based on reality or that it could interfere with the setting up of the schemes? As I have said, the larger schemes which operate in-house schemes already have member trustees and they are working well. In most other cases they are farmed out. One could imagine that the only reason for the secrecy is that somebody is playing about with them. By and large these schemes are run by professional bodies in compliance with professional standards.If anything else is going on, they are the very schemes for which we should have member trustees for whatever protection and necessary information they can give. "Trustees" is defined as meaning the administrator of the scheme and, accordingly, references to trustees shall be construed as including references to administrators. Can the Minister clarify that definition and develop it a little further?What number of schemes are we talking about in regard to administrators and what is the distinction? Under what legislation do they operate? Do they operate under the Insurance Acts etc? It is a distinction that had not occurred to me until we began debating this issue.
I think there is a major area of agreement between what the Minister is suggesting in his amendment and what has been suggested in the other amendment. I am sure the author of the pensions board report will welcome the fact that we have commended that report in all its recommendations. The only point that worried us was that one of its main recommendations, in the area of trustees, had been ignored in the original Bill. The Minister has now taken a major step forward. The only matter of disagreement — if it is disagreement — that remains is the word "may" or "shall". In relation to the word "shall" in the Minister's amendment instead of the proposed word "may", the word "shall" would be more binding on the Minister, or any successive Minister, particularly as it will not bring into being a specific starting date. As the Minister rightly said, there is no obligation on any employer or group of employers to have a pensions scheme. It is only if a pensions scheme is to be put into operation that there should be regulations setting down the rights of people to have trustees on the board. The first part of the Minister's amendment suggests that the employer will have the right to select employer representatives or employ himself. Of course, all employers ensure that they are on the trustees board.
The second part of the Minister's amendment uses the word "shall". That is important because it deals specifically with the right of members of the schemes to have participation or representation. That is essential because we are talking about funds in excess of £6 billion which is a conservative estimate of the value of pension funds. These funds are for the benefit of workers in their jobs and in their future. They are offered initially to people as part of the remuneration of their job. A pensions scheme, whether contributory or non-contributory, is at the discretion of the employer. If he offers a pensions scheme this legislation will ensure that it is run in accordance with regulations laid down by the pensions board.
We are asking the Minister — and he has suggested he would do it — to bring in regulations setting down a procedure under which these people could be represented on the trustee board. It is reasonable to expect that when the interests of the employees are at stake they should have the same right as the employer. We want to ensure that nobody would have any worry about this. As we have said — and Deputy Byrne has repeatedly said — where member trusteeships already exist that enhances the confidence of the members in their own schemes and leads to a greater level of interest and participation. That is what we want. Surely that is what any good employer would want by way of offering good terms of employment, an interest by the members in their own scheme and trusteeship?
I have read the wording suggested by the Minister as opposed to the wording suggested by Deputy Byrne and on balance, I think the Minister's amendment is a better one provided he will, as promised, change — between now and Report Stage — the word "may" to "shall". Everything else contained in that amendment is satisfactory for me. It does not oblige the Minister by way of a date — which will be dealt with in other parts of the Bill — to bring in the regulations at a particular time. I agree with the Minister that having to bring regulations before the House would delay them even if the regulations were satisfactory. Of course, they will be submitted to us and if we feel they do not meet the interests we represent then we can put down an amendment. I am not unduly worried about the rights of the House; I am concerned that the legislation would reflect the need for the Minister to lay down regulations. Certainly the Congress of Trade Unions felt very strongly about this issue and the pensions board recommended, after long and tedious deliberations, the amendment we were suggesting. We were suggesting that that requirement would be met by way of regulation. I think the Minister's amendment would meet that requirement also. I am glad of the Ministers assurance that he will examine the draftsman's favourite word "may" and have it changed to "shall" before Report Stage. Then, I would be happy with the Minister's amendment as suggested.
I am not happy with the suggested amendment by the Minister. The more I read it and the more I get a chance to refresh my memory of the opinions of the National Pensions Board the more determined I am in favour of our own amendment. The Minister has tried to project the position that "we are all in the one boat, we have all had talks with Congress, the employers etc. and we have thrashed out this agreement". It is not my understanding that the Irish Congress of Trade Unions would be happy with the Minister's amendment. The Minister mentioned that the National Pensions Board said that because of the importance of the issue we consider it desirable, taking into account the reservations expressed by some members of the board on this matter, that progress towards the fulfilment of this objective should be gradual rather than immediate. For this reason we recommend that the necessary statutory provision shall not come into operation until a period of three years has elapsed following the date of the enactment of the proposed pensions Bill.
We have got to remember that was said in 1987, three years ago. That was the thinking of the National Pensions Board then. We are now three years longer in the tooth. The Minister has produced this proposed legislation and is now seeking another three years before we would put into the legislation the rights of——
It related to the commencement date of the Act.
I appreciate that but in all fairness to those employers and others who have been in touch with the Minister since the National Pensions Board issued this report it is a fair assumption that the elements the Minister is now trying to appease are basically kicking to touch for another three years. He would not in the final analysis be representing the intended outcome as suggested by the recommendations in this report.
If that happens the Minister will have power to take action at any time in between. That is the big difference.That is why the pensions board recommended this provision because it puts that power into the legislation at this time.
The Minister can say that with conviction if he wishes. On the other hand he was critical of the fact, as mentioned in the report, that it shall apply to any funded scheme having 50 members or more. The Minister said that is out of date because the new thinking is that it could be fewer than 50. I welcome the Minister's proposals that the scheme should permit for worker trustees from schemes that comprise fewer than 50 members. We are not fighting with each other on that issue. In fact, I would support a scheme with fewer than 50 members being the criterion. The Minister has alleged that the new section 61 (2) proposed in my amendment is old and out-of-date but I argue it was never the intention to extend the three year period referred to in the report by a further three years, in other words, it will be another six years before workers sit on the boards of trustees.
I would now like to tease out the Minister's thinking behind amendment No. 56. The Minister will tell me very quickly if I am misreading it but he seems to be implying that the workers' at some stage, will have the option, if a majority of them decide to do so, to select or, at the option of such a majority, approve of the selection by the employer concerned. I would be very unhappy if that wording were accepted. Employers for all sorts of reasons might exert undue influence to get employees to opt out of nominating their own person in favour of the person nominated by the employer. The more I think about this the more I believe it will have a dangerous effect on the floor of the workshop. I would hate to see conflict arising in industry but this would be a possibility where an employer puts the word out among the workforce that he knows of some person who would make a good trustee and would protect the best interests of the workforce. Some workers would accept his word and others would not. This is a recipe for internal industrial conflict which would not be in the best interests of the employer or the employee. Therefore, I have many reservations about the Minister's amendment.
As was pointed out by Deputy Flaherty, the Minister has given no indication of when this scheme will be introduced. Our amendment is far more straightforward.It states that the number of trustees to be elected shall not be fewer than the number of trustees representing the company. The Minister is trying to water down this key element of the amendment in his own amendment. I am very suspicious of the Minister's amendment and am now more supportive than ever of our amendment.
I would like the Minister to clarify one point which occurred to me while Deputy Byrne was speaking. The Minister has stated that the specified number will be fewer than 50, but having regard to the fact that the amendment states "the Minister may provide by regulations, in respect of schemes having not less than a specified number of members" is he going to leave it up to the board to decide? It is possible that the number may be higher than 50. Obviously, it would be open to them to decide voluntarily on a smaller number but what we are doing is laying down a minimum number. Why not opt for the number recommended by the Pensions Board rather than leave the matter open to interpretation? There is a possibility that the number will be smaller and, if so, we should specify how much smaller and that it will still be open to schemes to opt for a figure below that level if they wish.
In relation to the point made by Deputy Byrne, it is my understanding that congress have admitted that because this is a specialised area, a very limited number of people with expertise are available within their own circle to deal with this matter and the best course for many groups of employees, if they wish to protect their interests, is not necessarily to agree to the appointment of the person nominated by the employer but rather to appoint someone with knowledge to protect their interests. This is a point I did not grasp until my last set of meetings with them. It is possible that an employer will do what Deputy Byrne has said and this may result in tension in the workplace. I do not know if the Minister has discussed this amendment with the two groups concerned but he indicated that he felt it would get their agreement. We will be able to clarify this point when we come to deal with section 61.
Deputy Flaherty stated that we should insert the words "five years", but one of the problems with doing this is that people would sit back and wait five years before doing anything. I do not want to quote examples as plenty abound, but I believe the board will make this happen if this is what they want to do. I can assure Deputy Byrne that the board will make progress in that area. As I said, I will have a look at this matter before Report Stage.
A fear was expressed in relation to the setting up of schemes. However, this fear can be overcome. It is easy to refer to schemes which are running well where everyone is happy and to ask why everyone else is not happy but this is not the case. A genuine fear has been expressed, and we are dealing with it reasonably at present by providing the means to ensure that it can happen harmoniously and as quickly as possible. We are giving power to the Minister to step in at any stage to point out that they had been given sufficient time and that he is going to make it mandatory.
Deputy Flaherty referred to the administrator.This is a technical matter but the term "trustees" is designed to include in the case of schemes not set up under trust — that is unfunded arrangements — the administrator of the scheme. It is a requirement of the Revenue Commissioners that for tax approval purposes schemes must appoint an administrator. It includes any person or body responsible for managing the scheme. The administrator will often be the trustee of the scheme or someone who is nominated, but it may also be a pension scheme manager or the employer himself.The responsibility for ensuring that a schemes complies with the various requirements rests with the trustees or, if there are no trustees, the administrator. This is to ensure that it is always covered.
Deputy Flaherty raised the question of including the figure 50, not another figure. We want it to apply to all if possible.We could provide for not more than 50 but equally we could specify not more than 25. Any Minister in my position would be happy to follow it up with the board, who will pursue the line I indicated.There is no need to put in a number. However, I will consider the matter before Report Stage. The intention is very clear. It may be better not to mention a number. In setting up the board I will indicate very clearly what we want in this respect.
I can never please Deputy Byrne and I will not try further. He does not trust me or anybody. I have had discussions with the ICTU and I know this is what they wanted in the Bill. They know it has been developed harmoniously and that it is a question of balance. They know the very real difficulties and that the matter has been discussed at the central review committee. This is consistent with my meetings with them. Whenever Deputy Byrne sees the word "employer" he gets upset.
What about representing the workers?
I always represent workers.
Not in this Bill.
This is the mechanism where it is preferred that somebody from outside would be appointed, for instance, a trustee who would be a pensions consultant.The Deputy mentioned that once the employer is brought in he could have a workforce that would be compliant. That could apply to any of the steps. A majority of the workers is required in the first instance. It is purely to cover that kind of situation. The Deputy need not be so concerned about it. Deputy Byrne maintains his reservations and perhaps he can consider the matter further.
I move amendment No. 4:
In page 9, subsection (1) (c), line 29, to delete "of this Act or regulation".
This is a purely technical amendment.
Amendment No. 5 in the name of the Minister. Amendments Nos. 16, 17, 18, 67, 69 and 70 are related, amendments Nos. 6 and 7 are alternatives and amendments Nos. 5 and 19 are alternatives to amendment No. 18. The suggestion is that we discuss amendments Nos. 5, 6, 7, 16, 17, 18, 19, 67, 69 and 70 together, by agreement. Is that satisfactory? Agreed.
I move amendment No. 5:
In page 9, subsection (3), line 41, to delete "liable on summary conviction to a fine not exceeding £1,000" and substitute "liable—
(a) on summary conviction to a fine not exceeding £1,000, or to imprisonment for a term not exceeding one year or to both,
(b) on conviction on indictment to a fine not exceeding £10,000 or to imprisonment for a term not exceeding 2 years or to both".
This amendment provides for increased levels of fines for offences under the Bill. Following the publication of the Bill representations were made to me by the ICTU that the levels of fines provided for in the Bill were too low and did not constitute a real deterrent. This point was raised on Second Stage.
In view of the serious consequences that could arise for members due to the failure of trustees to discharge their responsibilities under the Bill, the level of fines should be substantial enough to penalise defaulting trustees. I propose, therefore, to provide in addition that the guilty party may on conviction on indictment by the court be liable to a fine of £10,000 or two years' imprisonment or both. The current maximum limit set by the Attorney General's office for fines for summary offences is £1,000. Accordingly, I propose no change in relation to such fines. A number of the amendments propose an increase of the £1,000 fine to £5,000 or £10,000. In practice that cannot be done in relation to summary offences, where the maximum is £1,000. I am bringing in a more serious offence with the higher levels as the maxima. I trust this amendment will meet the requirements as set out by the Deputies in their various amendments. A number of others like amendments Nos. 69 and 70 really provide for the same fines set into different parts of the Bill.
In relation to amendments Nos. 69 and 70, I would like to draw the attention of the House to a minor printing error in their wording. The error in question is the use of the word "or" instead of "on". I wish to correct that error on page 13 of the list of amendments. Amendment No. 69 (b) should read "on conviction on indictment," and amendment No. 70 (ii) should read "on conviction on indictment,".My note said "or" but from my experience in Justice I said automatically "on conviction on indictment". It is just the terminology. I hope this will meet the requirements Deputies are seeking for stronger penalties. These are very major penalties. A very serious penalty is introduced now and this is the way it has to be done. It cannot be done by just increasing the summary offence penalty.
This merits a welcome. The Minister has moved substantially. Again, I defer to the legal expertise in relation to the distinction between "summary" and "on indictment". I suppose the decision about where a case enters the courts and whether it is dealt with appropriately is a matter for the legal authorities, but we have made a provision that it can be dealt with seriously. A strong view was expressed to all of us from Congress and others and from ordinary members of schemes that, given the very serious consequences for scheme members of failure of trustees to carry out their duties and the phenomenal size and value of pension funds and schemes, it was necessary and desirable that paragraph (b) be amended to provide for a more substantial fine. I have suggested one or two amendments which would in turn give extra protection to trustees and we will be dealing with that shortly. On both sides there can be serious offences and very serious consequences can ensue for the members if trustees fail in their function. The changes proposed by the Minister meet quite substantially the points raised by Fine Gael.
Section 3 of the Bill provided initially for a fine not exceeding £1,000 for contravention by a trustee of the provisions of the Bill or regulations under the Bill. Section 18 provided for fines not exceeding £1,000 and £5,000 or a two year term of imprisonment where an employer or a trustee obstructed investigation of a scheme by the board. In the light of the value of the scheme and the value of pensions trusts at present, currently in excess of £6 billion, it was everybody's opinion, certainly that of Members on this side and to a lesser extent of Deputy Flaherty because she halved the suggested penalty which is now being doubled by the Minister in line with what Deputy Byrne and I have been suggesting, that where workers' interests were at stake and such a large sum of money was invested on their behalf, for offences under this Bill the level of fines was too low. There could be very serious consequences for members of the schemes if a trustee failed to carry out his duty and it was obvious an amendment was necessary. Deputy Byrne and I agreed in different locations on different days and with different advice, that the correct fines were in the region suggested by us in our amendment. However, the Minister has available to him legal advice that was not available to us and we bow to that advice. I understand that you must have a summary conviction and all sorts of legalistic terms are consequentially used before you can enforce fines at this level.
The most important thing is that now employers and the trustees of these funds will know we are serious in the Oireachtas about complying fully with regulations or suggestions laid down by the Minister. If a company chooses to ignore them, as has been done in the past, these types of fines will apply. We want to be no more penal than anybody else but we must have fines pitched at a level that is a real deterrent against people doing anything but what is intended by way of legislation with investments made by, for and on behalf of employees in companies who benefit under these schemes in the long term, and we intend their long-term benefits will be protected by legislation. Fines in this region are the appropriate deterrent. I accept the Minister's legal advice regarding the wording he has used. He meets the reservations we and Congress had about the levels of these fines as laid down in the Bill initially.
The Minister has gone in the right direction this time. When we are dealing with the question of fines or imprisonment we must take into consideration that we are trying to protect against, for example, fraud. The Bill lists instructions that must be complied with and the offences, for example, the production of false reports or false certificates or other documents. We must view the penalties in the light of the huge sums of money involved in the pensions area. I do not wish to bore the Minister, but let me mention again the enormous amount of £10 billion increasing at a rate of £500 million from contributions annually and from investments of £600 million per annum. We are talking about huge sums of money in the knowledge of unfortunate events recorded where very large question marks have been put over the functioning and operations of certain people about where the pension money ultimately ended up. In certain cases it did not end up in the pockets of those the funds were supposed to be for, that is the employees of certain companies. Therefore, we have as a backdrop the fact that there is great possible temptation for certain individuals to mess about in a simplistic way with members' funds or for companies to act in a more co-ordinated, complex way by fraudulently administering or investing the funds. Because of the huge sums of money involved, we must have penalties sufficient to deter anybody from doing anything illegal.
Almost as important if not more so, we are also dealing with the oxygen of life for hundreds of thousands of people. At the moment there are in excess of 500,000 paying members, but hundreds of thousands of people either are at present drawing pensions or are on the way out of their gainful employment and about to take up pension rights. Their interests must be protected. There are also widows, widowers and families of decreased members whose pension rights have to be protected in law.
We propose in our amendment a substantial increase in the fine provided in section 3 (3). We have to make people aware of the mortal sin dimensions, so to speak, of an offence committed under this Bill. I think the State contribution to these schemes in 1989 by way of tax relief on contributions was some £203 million and on investment income £162 million in 1989. This is a substantial contribution by the State by way of tax breaks and tax reliefs. The State, companies and employees have an investment in these pension schemes and we must collectively be safeguarded by way of the penalties proposed in this legislation. The penalties proposed in the Bill must be brought to bear on trustees, corporate bodies or other companies listed in the various sections who commit serious offences.
I should like to ask the Minister the position in regard to indexing the fines proposed for offences under the Bill. A fine of £10,000 may not represent a great deal of money to a corporate group but it is a fair sum by today's standards. Is there any way of providing in the legislation that the fines set will be as much of a deterrent in ten or 20 years' time as they are today and will not be diluted by time?
With regard to indexing, this is normally done by way of updating or in a consolidation Bill. It is not normal practice to index fines. The fine proposed in the Bill is very substantial and I think Deputies will find in practice that a fine of £10,000 or two years in jail will act as a deterrent. I presume the two years in jail will not have to be indexed but the fine of £10,000 is quite substantial and leaves us a lot of scope.
We cannot hang them any more.
As Deputy Ferris has said, we have gone for the bigger sum which will leave us with scope for quite some time to come. I should like to point out to the House that the figure of £1,000 in paragraph (ii) of amendment No. 70 should read £10,000. This is a typing error. I am reflecting the views of the Members opposite in what I am doing here. Deputy Flaherty said the fine should be £5,000 while another Deputy felt it should be £10,000. One way or the other Deputies felt that the fines should be more substantial and I am making provision for that by proposing a very substantial fine of £10,000 as a maximum and a prison sentence. I thank the Deputies for their support for this amendment.
I move amendment No. 8:
In page 10, line 5, after "Chapter II", to insert "of Part I".
I should like the Minister to indicate his thinking in relation to the report on the tax treatment of pension schemes and whether he intends to do something in this regard. On Second Stage the Minister referred liberally to the tax regimes the Government operate to encourage pension schemes and how important they are. I put down an amendment to this section which was ruled out of order because it did not come within the scope of this Bill and proposed the extension of further reliefs to pension schemes for the self-employed.
At present the Revenue Commissioners monitor this whole area and those involved in the pension industry believe they have operated in very difficult circumstances a benign and helpful regime for various schemes. They have an immense body of knowledge and information built up which would be of value to the pensions board — I understand that is the thinking behind this section — and I should like the Minister to clarify how he envisages this co-operation working. Will it be confined to an exchange of information? Would there be any value in relocating personnel from the Revenue Commissioners to the board when they eventually begin to recruit staff? Is the Minister aware of the very difficult staffing problem the Revenue Commissioners have in this area? Is the Minister prepared to make a special case for pensions schemes which have operated in very difficult circumstances? I should like the Minister to tell me how he envisages this exchange of information working, his understanding of the role of the Revenue Commissioners in this area to date and how they will be interlinked with the pensions board in monitoring pensions schemes in the future to ensure there is no unnecessary duplication.
Notice taken that 20 Members were not present; House counted and 20 Members being present,
The section provides for the transfer of information on occupational pension schemes between the board and the Revenue Commissioners. The retirement benefit district of the Revenue Commissioners is responsible for the tax approval of pension schemes under the Finance Act, 1972. Their supervision is mainly limited to ensuring that the tax reliefs are restricted to bona fide pension schemes and that the benefits paid and the contributions set aside to fund the pension promises do not exceed maximum limits, that is, that the pension scheme is not being used for tax avoidance purposes.
Section 59 of the Bill requires a scheme to register with the board and it may be considered desirable, following the establishment of the new board, to set up a joint register of pension schemes between the two organisations. A recommendation along these lines was made by the National Pensions Board.
In relation to the general question of the tax treatment of pensions which is of importance to the whole pension system, it is a matter for the Minister for Finance, but needless to say it is one that the pensions board would be aware of and would be anxious to highlight its importance as a crucial incentive in the development of pension schemes generally.
The Minister has indicated a slight problem in that area in that he has responsibility for the pensions area but the tax treatment of pensions is a matter for the Government and the Department of Finance. He has to hand a major report on tax treatment of pension schemes which made very specific recommendations in some areas and left others to the Revenue Commissioners. Would the Minister indicate whether he will be making any recommendations to Government or taking any initiatives in this area because the tax treatment of pensions is vital in terms of creating an environment where they would expand? I ask in particular in relation to the self-employed who are excluded from comparative benefits currently available to employees in occupational pension schemes. Is there any hope that something could be done in that area, given that my amendment was ruled out of order as it related to a financial measure not in the context of a further pensions Bill?
The tax treatment is pretty good at present. The main concern would be that there would be any adverse development in the tax treatment of the occupational pensions schemes. The report is with the Minister for Finance at present and it is his responsibility. I have noted what the Deputy said and will certainly keep it in mind.
We certainly would not interpret the section as being a facility for people to avoid the payment of tax. We would be anxious to ensure that whatever incentives are there now should be maintained and improved upon because they have a vital bearing on the success of occupational pensions schemes. The tax incentive is a vital instrument for getting the scheme up and running, otherwise employers will not set up schemes. The Minister has read the situation correctly and it is appropriate that anything we do should not prejudice the existing benefits and that they should be improved if at all possible so that pensions schemes can be more successful in the future, particularly as we are now legislating to have some order put on them.
Finally, I would say that areas like this tend to be interfered with in budgets by the Minister for Finance in particular which makes them less attractive. The same applies to mortgage relief which is another debate, but it is important to note that there have been disimprovements in the tax relief for essential items like this. They are a way to encourage people to save in the future and we should legislate to give them every incentive to do so.
The pension board would be there to advise on all that in a statutory way and that will be an advantage.
I move amendment No. 9:
In page 10, before section 6, to insert the following new section:
6.—Every regulation made by the Minister under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and shall not come into effect until such time as a motion approving of the draft has been approved by each of the Houses of the Oireachtas.".
Given that the Minister has put in a catch all section for his regulations, I am putting in a catch all amendment because of the need to have those regulations passed positively in the House. There are so many areas here that will be decided by regulation. Practically every major section of the Bill will take its shape largely in regulations. It includes elements of the disclosure which are extremely serious. I would be interested in hearing the Minister's ideas in relation to the regulations relating to that. In relation to funding there will be groups excluded, etc. That is why I express this concern again, given that some of my colleagues have put down amendments individually to some of these sections, I will not press it overactively at this point. Depending on the kind of reassurances the Minister gives us, we can decide what to do on the other sections of the Bill.
There are times when I share the views of Deputy Flaherty. It is important that the House would have the opportunity to discuss some types of regulations before they become effective. I have reservations, however, about applying that principle to all regulations relating to this Bill because it could delay regulations which would be in the interests of the beneficiaries. The Minister should bear in mind that the suggestions we put forward are ideal for inclusion as regulations. He should consider submitting to us in advance of publishing the regulations a draft of his proposals. If he submits such a draft we will have an opportunity of commenting on it and the Minister could take our views into consideration before publishing the regulations.
If the Minister takes our views into consideration we will not be tempted to stop them coming into operation by resolution in the House. I do not think it is right that we should have to wait for so many sitting days of the House to pass before regulations, social welfare regulations in particular, are put into effect. Poor people may be depending on the implementation of those regulations. There is no doubt that regulations under the Bill will be important. While we are not in a position to cover everything in the Bill the Minister will be in a position to do so in the regulations.
I disagree with the views expressed by Deputy Ferris. It appears that the line up in regard to this amendment will be Fine Gael and The Workers' Party against the Government. Many of the provisions of the Bill will have to be complemented by regulations and for that reason I do not think we should let the opportunity pass without putting suggestions to the Minister for inclusion in the regulations. It is possible that Members will feel that the regulations, when published, do not follow the views put forward by the Minister during the debate. We are likely to have a big number of regulations following on the passage of the Bill. I accept Deputy Ferris's point that it would be wrong of us to stall any regulations which provide for payments to pensioners and social welfare recipients but I take a different stance in regard to the regulations that will follow the passage of the Bill. For example, regulations will have to be made in regard to the appointment of trustees.
Amendment No. 56 in the name of the Minister states:
(2) Regulations under this section—
(a) shall specify the manner in which decisions of members of schemes, and the selection of persons for appointment as trustees of schemes by the members of schemes, for the purpose of subsection (1) shall be made,
(b) may make such other provision as the Minister considers necessary or expedient for the purpose of this section and for enabling it to have full effect.".
The first point that must be made in relation to that amendment is that the number of trustees will have to be specified in the regulations. It will also be necessary to specify the number of persons who shall be appointed to the trustees of the scheme approved by the employers. Those provisions highlight the need for a debate on those regulations.I will be supporting Deputy Flaherty's amendment which suggests that the regulations should be debated in the House. I am not here long enough to understand the implications of the alternative method of introducing regulations but I am led to believe that for a small party like ours it is very difficult to introduce motions objecting to regulations before the House.
I am concerned about the regulations that will be published concerning disclosures. In my view two important regulations will be made in relation to that topic. The main features of the Bill relate to preservation, funding, disclosure of information and the setting of general standards in regard to pension funds. Under the heading of disclosure I have no doubt that a regulation will be introduced concerning the right to information on request and one excluding certain schemes from the disclosure requirements. We do not know what we are buying in regard to regulations. To what extent the protections contained in the Bill be taken back under the regulations?The position is very unsatisfactory.My fear is that under the funding section there will be substantial exclusions. Any interference with the section dealing with the disclosure of information will undermine the Bill. Will the Minister reassure us in regard to the regulations?
Am I correct in stating that only the Minister can introduce regulations?Am I correct in stating that a Member cannot change regulations? My understanding is that I can oppose the regulations but that I cannot amend them.
That is the way all regulations are dealt with. If they were dealt with in any other way the public service would be clogged up and we would finish like Deputy Byrne's past friends, over-bureaucratic.If Members have objections to regulations the Minister may change them.
I should like to point out to Deputy Byrne that he does not have to acknowledge or reject his "friends" at any stage.
I did not know I had any friends.
The Minister can change regulations and the National Pensions Board will be working with the Department to try to frame appropriate regulations.Deputy Flaherty and Deputy Ferris said earlier they appreciated that a large number of regulations must be implemented. This is a huge Bill and we certainly could not include the regulations.The regulations will allow the flexibility needed to deal with different sections. Of course the Minister can amend a regulation if something is highlighted or it can be turned down in the House and annulled. That is — and always has been — standard procedure. The section provides that regulations made by the Minister under the Act must be laid before each House of the Oireachtas. This is a safeguarding section to make sure that any regulation made by the Minister must be laid before each House and, if the House does not like them, they can, within 21 days, annul them. In practice, when a problem develops the regulation is amended and, if people do not like the amended version, they can vote against it in the House. It is a perfectly normal procedure for control on the administration and it does not shackle it. Occasionally, people may feel that there should be a specific requirement but that may only affect civil rights or matters of that kind.
My next amendment is like that.
Deputy Flaherty said she would not press this amendment.
I said that I was thinking about it.
Has the Deputy been convinced by her colleagues in The Workers' Party?
The best way to proceed would be to oppose the two sections about which I am concerned, dealing with disclosures. If the Minister can reassure me at that time I will see where we go from there.
I had an amendment tabled to this section.
As it involved a potential charge on the Exchequer it was ruled out of order.
May I raise the point of substance about which I am concerned and about which I spoke on Second Stage?
The Deputy is entitled to refer to the outcome for which she hoped from the amendment.
On Second Stage I expressed concern as to the potential future cost of the administration of the Act. It specifies later that the board's expenses will be met by a contribution from the schemes. That seems reasonable in view of the size of the industry and the figures which have been mentioned. However, the Minister said— and I am aware of this from my consultations with the industry — that many schemes are fragile. This is the case in small to medium businesses where it may be touch and go in relation to a pension scheme and where additional costs may influence a firm not to implement a scheme or, if they have one, to wind it up. This Bill will not change anything in that regard. This is a delicate balancing act and perhaps the Minister will be able to reassure me in relation to the cost of running the scheme. Does this provision — and the one later on which indicates how the board will be funded — exclude the Exchequer being involved in the direct funding of the board?
This is just a provision which enables the Minister to be involved in expenditure. Obviously the Minister will be concerned about how small schemes operate but there is a section dealing with the whole question of funding as operated through the board and we can deal with it then. However, this is a standard provision applying to Acts of the Oireachtas generally and it gives the basic authority for the payment of expenditure for administration. There might not be a requirement but it is very important that the Act has a provision enabling expenditure to be made if that is necessary. I take it that the Deputy is referring to very small schemes which will not be covered by the board and that the Minister should be in a position to do something about it. This is the enabling power but we will deal with it in the section dealing with the board and moneys available.
The Minister has not quite met my point. I gather that very sizeable boards have been established in other countries with hundreds of employees. In Britain — and most of the other countries — part of the costs are Exchequer funded because it is part of the service of the State to protect the members and employees. It is not desirable to have a big board, especially if it will be a burden on the schemes. There may come a time when the Exchequer would have to take up some of these schemes and I should like the Minister to clarify whether this power would be sufficient in that regard. Does the latter section prevent the Minister from being involved in any funding for the board? Does it confine funding to the one source and, if so, how could that point be met?
We are getting back to the Deputy's amendment which dealt with expenses incurred by the board in the administration of this Act. In effect, the expenses of a member of the board may be met from the funds provided by the Oireachtas. For instance, the chairman may have a small stipend. It is really just an enabling provision for anything that occurs under the Act in which there will be a requirement. We will have to see what is subsequently required.
Just for the record would the Minister like to give his hoped-for establishment date?
First of January 1991. All of the regulations will have to be implemented by that date. Of course the board will be established immediately. From 1 January 1991 there will be the preservation of benefits, funding standards, disclosure of information, the appointment of trustees, and other provisions will come later. That will not be possible if we do not have the Bill passed before the summer recess.
I note that section 9 (2) reads:
The provisions of the First Schedule shall have effect with respect to the Board.
Do we deal with the detail of the First Schedule now or later?
The First Schedule at the appropriate time, which will be later.
We come to amendment No. 11 in the name of Deputy Ferris. With the indulgence of the Deputy and the House, amendments Nos. 12, 13, 14 and 15 — which are alternatives — might be discussed with amendment No. 11. Is that agreed? Agreed.
I move amendment No. 11:
In page 11, subsection (1), lines 18 to 20, to delete paragraph (c) and substitute the following:
"(c) to draw up and issue codes of practice in relation to which the following shall apply—
(i) the Board may, as it thinks fit, approve of any code of practice or any part of any code of practice drawn up by any other body,
(ii) codes of practice issued or approved of under this section shall be for the purpose of providing practical guidance with respect to the requirements or prohibitions of any of the relevant statutory provisions,
(iii) the Board shall obtain the consent of the Minister before issuing or approving of a code of practice,
(iv) the Board shall, before seeking the consent of the Minister for the issue or approval of a code of practice, consult any Minister of the Government or other person or body that appears to the board to be appropriate or where the Minister so directs,
(v) where the Board issues or approves of a code of practice it shall publish a statement inIris Oifigiúil of its issue or approval of that code, identifying the code in question, specifying for which provisions of the relevant statutory provisions the code is issued or approved and the date from which the said code shall have effect.
(vi) the Board may, with the consent of the Minister and following consultation with any other Minister of the Government or any other person or body that appears to the Board to be appropriate—
(I) revise the whole or part of any code of practice prepared by it,
(II) withdraw its approval for any code of practice or part of any code of practice,
(vii) where the Board revises, withdraws or ceases to approve of a code of practice it shall publish notice to that effect inIris Oifigiúil,
(viii) a failure on the part of any person to observe any provision of a code of practice shall not of itself render him liable to any civil or criminal proceedings, but where in any criminal proceedings a party is alleged to have committed an offence by reason of a contravention of any requirement or prohibition imposed by or under any of the relevant statutory provisions being a provision for which there was a code of practice at the time of the alleged contravention, subparagraph (ix) shall have effect with respect to that code in relation to those proceedings,
(ix) any provision of the code of practice which appears to the court to give practical guidance as to the observance of the requirement or prohibition alleged to have been contravened shall be admissible in evidence, and if it is proved that any act or ommission of the defendant alleged to constitute the contravention is a failure to observe such provision of the code, or if it is proved that any act or omission of the defendant is a compliance with such provision of the code, then such failure or compliance shall be admissible in evidence.".
I have tabled this amendment as a result of the recommendations of and discussions I have had with Congress. Whereas they welcomed the fact that one of the functions of the pensions board in this section would be that they would lay down guidelines I tabled my amendment on the basis that they were anxious, and I agreed with them, that there had been recent experience of guidelines being laid down in the Safety, Health and Welfare at Work Act, 1989 — sections 30 and 31 thereof being very specific with regard to the guidelines and code of practice laid down therein. The trade union movement had accepted that Act as representing progressive legislation. They were anxious that this section would reflect the provisions incorporated in that Act.
I hope the Minister will accept my amendment on the basis that it represents a more positive manner of laying down guidelines which were specified by the Minister in three lines in the original Bill — to issue guidelines on the duties and responsibilities of trustees of schemes and codes of practice on specific aspects of their responsibilities. My amendment is a repetition, almost word for word, of the previous Bill, merely changing the word "authority" in the original Bill to the word "board" in this one. Because this wording would be applicable to nine subsections I hope the Minister will find it possible to accept it. I understand that Congress made the same point to the Minister himself and no doubt also to other Members.
The intent of my amendment is clearly the same as that of Deputy Ferris. Like Deputy Ferris, my fear and that of ICTU is that the provisions——
I hesitate to interrupt Deputy Byrne. Would he please move to report progress?