Transport (Railway Infrastructure) Bill, 2001 [ Seanad ] : Report and Final Stages.
I move amendment No. 1:
In page 5, line 23, to delete "Railway" and substitute "Light Railway and Metro Railway".
When I moved this amendment on Committee Stage the Minister promised to examine the ramifications of accepting it. I have looked at the amendment in some detail since and I thank the Minister for allowing her officials to assist me in that matter.
I would be happy to leave the Title as it is and withdraw the amendment if the Minister assured the House that the proposed third section of the Bill, which will deal with railway orders and will include the transference of the power to make those orders to the new agency, will not also include the transference of procurement powers so that if a line is built between Dublin and Navan, as is proposed, the new agency will not be operating and controlling it; it will simply be dealing with the railway order that will be required and planning or licensing procedures. Can the Minister assure me that the new agency will be dealing with Luas and with the new metro alone and that it will not be taking responsibility for the new heavy rail lines from the airport or from Navan to Dublin?
I want to thank Deputy Stagg and both Opposition parties for approaching this Bill in such a constructive manner. I can assure the Deputy that section 3, which is to do with the making of railway orders, deals with heavy rail. The usual procedure for heavy rail is to go through the procedure and get a railway order made. There will be no procurement of heavy rail from the railway procurement agency. Is that what the Deputy wishes to know?
Yes. I therefore withdraw the amendment.
Amendment, by leave, withdrawn.
I know that the Minister will not accept amendment No. 2, for which I made an argument on Committee Stage. This amendment would have the effect of incorporating the agency into Córas Iompair Éireann and having one railway procurement agency rather than two, which would be sensible wherever its location. The decision is to have two, one for heavy rail and one for the new type of railway being proposed.
Amendment No. 2 not moved.
I move amendment No. 3:
In page 9, between lines 14 and 15, to insert the following:
"(f2>b) to monitor and publish regular reports on the safety of railway infrastructure generally;".
The Minister indicated strongly in her speech in the Seanad and her remarks to us on Committee Stage that, given that there was a delay, she would consider giving a temporary safety remit to the new agency, less than the Minister had been hoping for, in publishing and introducing the new, comprehensive Railway Safety Bill. I understand that the Bill has passed the Cabinet and will be published soon. However, there will be a gap between what we are doing now and the passing and implementation of that Bill. The Minister said in the Seanad that she might accept a temporary safety remit for the new agency. She has an opportunity to do this now.
I move amendment No. 1 to amendment No. 3:
In amendment No. 3, to delete all words after "safety of" and substitute the following:
"light railway and metro infrastructure;".
I did consider it very carefully. The Railway Safety Bill is going to Cabinet on Tuesday and will be printed in the following two to three days. Deputy Stagg sought to give the railway procurement agency a role in monitoring and reporting on rail safety. I am partial to accepting this amendment, even though it is to be hoped that the Railway Safety Bill will be law before Luas begins to run, and I did give a commitment about it in the Seanad. It is an interesting idea. Even as the line is being developed there will be safety matters to report on. The underlying intention is a good one and I am accepting it. However, the amendment must be changed so that it refers to light railway and metro. It is recommended here that I do not accept this amendment, but in true Civil Service fashion there is an alternative wording, "to monitor and publish regular reports on the safety of light railway and metro infrastructure;". That is important because the tracks are the infrastructure. That is the amended amendment.
I am in favour of this; it is a very good amendment. However, when the other Bill is enacted will we then have two bodies reporting on safety? How is this provision to be taken out of the Bill at that time? Will it be amended through the new legislation?
The provision is to monitor and publish regular reports and I can quite see that the two could mesh or be subsumed.
Amendment to amendment agreed to.
Amendment No. 3, as amended, agreed to.
Amendment No. 4 not moved.
Acting Chairman
Amendments Nos. 5 and 10 are related and may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 5:
In page 13, between lines 2 and 3, to insert the following:
"(7) The Minister shall make information on the finances and operation of the Agency available to Dáil members in response to parliamentary questions and that the Agency shall co-operate in the matter when requested by the Minister.".
This was discussed in detail on Committee Stage and the thrust of the amendment was discussed here on Second Stage. It is an effort to allow Members of this House access to information, by way of parliamentary questions, about an agency that will be independent but will, at the same time, be responsible for a considerable amount of public moneys. I acknowledge that the Minister has been very forthcoming in response to questions from me and from other Deputies about many matters under her remit but not all Ministers are of that mind. In fact, we may see a change of Minister shortly.
The Chair and I intend to return.
Deputies from all sides of the House have expressed the opinion that if a State agency is to be set up, although it may be independent, it should be accountable here even if it is only a question of information being available to Members. We represent the public, members of which ask us to find out information on their behalf, but when we ask questions in the Dáil about an agency that spends a considerable amount of State money and is in charge of a considerable amount of resources, quite often we are told that the Minister has no responsibility in the matter and that it is an independent agency. There is a fundamental problem for democracy there.
I am not suggesting that the Minister should be responsible for the day to day operation of the number nine bus and the reason it was five minutes late. We must find a middle ground here. The Minister did acknowledge that she would consider this after Committee Stage. Everybody wants something like this to happen. I know there is some work being done by the Whips but I am not sure whether this will entail legislation. If the Whips were to introduce proposals to the House, legislation would be required to give it this kind of impact. I am not sure whether this is promised or what the timescale would be. In this regard there is an opportunity to put into this legislation a requirement that information be made available to Members, and thence to the general public, through parliamentary questions.
The Minister may suggest taking the word "operation" out of the amendment as she had a problem with it on Committee Stage. However, the matter should be considered and I am anxious for the Minister to look favourably on the thrust of this amendment. I would be willing to remove the word "operation" if that would be of assistance.
We had a very good debate on this and the Minister was favourably inclined towards it. In fact I thought she might have tabled an amendment to take account of it. We deal regularly with the setting up of various quangos and moving the authority out of this Chamber to the quangos. I am worried about that and I believe every Member of the House is worried about how this issue can be redressed. The committee dealing with Dáil reform will be making proposals containing something along the lines of what is being proposed here. Their intention is that the quangos within the Minister's remit, for which she does not have day to day responsibility, will have information collected from them. The Minister will give account of them to the Dáil as required by parliamentary question so that there is not a whole new block of public interest areas that cannot be raised in the Dáil.
This Minister has been excellent in that regard. She has taken questions and not sought to have them refused. Under existing rules many of the questions the Minister has taken could have been refused. That is personal to the Minister and her practice should be put into legislative form, and the amendments that we have before us would do that. The Minister was favourably disposed to it.
I am in favour of the House getting whatever information it requires to do its business. I fail to understand why I get an answer stating that as it is a day to day matter it has nothing to do with me. If it can be done I seek with my officials to have the question answered. Deputy Séamus Brennan has assured me that the Whips are looking at proposals which will render Ministers more accountable in respect of answering questions in the House.
That will apply to all parties because Governments change and at some point Members from Opposition benches will be here giving answers. I will not accept this amendment but I have informed Deputy Séamus Brennan, as Government Chief Whip, that when these proposals come forward I am in favour of accepting them. The Railway Procurement Agency will then go into the remit of those changed proposals.
I am concerned about the proposals because in the event of an election occurring these matters can be delayed.
I understand it is coming in after Christmas.
The Minister said the thrust of these proposals, which we have not seen, will be to make Ministers more accountable, but I am concerned with making agencies more accountable. Deputy Stagg is right in saying that decision making power is moving out of the House. We are not able to get information and people are frustrated because of it. Some of these agencies are responsible for hundreds of millions of pounds but we cannot get information on them. There is something drastically wrong with such a system.
These agencies come before committees but that is for nothing more than a nice cosy chat once a year. Even at committees it can be difficult to elicit information, whereas the information can be obtained by means of parliamentary question and if one is not happy then a supplementary question can be asked. I am disappointed that the Minister has not lived up to what she said she believes in.
Many Deputies, including those on the Minister's side of the House, were very strong in their support for this – Deputy Callelly was one of those who argued in its favour. There seems to be cross-party support for this provision. Even if the Minister was to take out the word "operation" to make information available on the finances, then Members could table questions on the agencies' finances. On Committee Stage the Minister acknowledged that she might look favourably on that because it is happening anyway through annual reports and so on.
The Bill provides for the agency to account to a committee of one or both Houses of the Oireachtas for the performance of its functions. It is not a case of a cosy chat once a year and if that is what happens it is a reflection on the committee members. It is up to the committee to be probing.
They do not have the resources to do that.
The sub-committee on the mini-CTC signalling project got very specific resources to deal with that matter. I accept the point the Deputy is making and I am very willing to put this in under the new proposals. I agree that all sides of the House – and Deputy Séamus Brennan confirmed that for me – are keen to have information made available to Deputies regardless of who is in Government. I want to reassure Deputy Stanton that when the changes come in they will be included.
In withdrawing my amendment I want to welcome the commitment of the Minister to the principle of what we are stating in this amendment. All the party Whips are committed to this issue. We will be presenting a package containing good and bad from everybody's point of view and I hope that balance will prove acceptable.
It is absolutely necessary.
Amendment, by leave, withdrawn.
Acting Chairman (Mr. McGrath): Amendment No. 6 is in the name of the Minister. Amendment No. 8 is related and amendment No. 7 is an alternative to amendments Nos. 6 and 8 and they will be taken together, by agreement.
I move amendment No. 6:
In page 13, lines 3 and 4, to delete ", at least one of whom shall be elected by the employees of the Agency,".
This is what we moved on Committee Stage.
I will withdraw amendment No. 7.
Acting Chairman
Acting Chairman
Amendment No. 7 is related.
Amendments Nos. 7 and 8 are taken together.
Acting Chairman
We are taking amendments Nos. 6, 7 and 8 together.
I will be withdrawing No. 7. It is the rushing of legislation that gives rise to a situation where the Minister has effectively accepted something on Committee Stage and there are amendments still included which contradict that position. The constriction on time seriously affects the consideration that one can give, even in the matter of putting in amendments.
Amendment agreed to.
Amendment No. 7 not moved.
I move amendment No. 8:
In page 13, between lines 8 and 9, to insert the following:
"(2) Notwithstanding subsection (1), until the first appointment to the Agency of a person consequent to an election having been held to which subsection (3) relates, the Agency shall consist of 7 members.
(3) One of the ordinary members of the Agency shall be a member of the staff of the Agency who shall be elected by secret ballot of the staff of the Agency in such manner as the Agency, with the agreement of the Minister, may determine.".
I readily acknowledge that both parties had amendments of the same thrust, one was for two staff members and the other was for one, and we decided on one. I am glad to go along with their intentions. We included that it should be done by secret ballot.
I acknowledge that both Opposition parties had moved a similar amendment on Committee Stage. Originally the agency was to have had eight members but it has now been changed to seven. Is there a reason for that?
The Deputy earlier expressed concern about the voting procedure. It is laid out in the Bill, including the casting vote of the chairman. We ascertained the position and advised Deputy Naughten. The agency shall consist of eight members, or seven until the worker director is added by secret ballot.
Amendment agreed to.
I move amendment No. 9:
In page 14, lines 34 to 36, to delete all words from and including ", in" in line 34 down to and including "Agency" in line 36 and substitute "comply with the requirement that at least 3 members shall be women and at least 3 shall be men".
The reality is that women do not achieve the level of representation at higher levels in society that is desirable and would be required by their numbers. Achieving that desirable level is Government policy, and there have been a series of attempts by the Government to discriminate positively towards women to ensure they achieve fair representation at all levels. One of the things the Government can do is ensure that a certain number of women are appointed to State boards. In this case the application of Government policy would mean the board would comprise at least three women and at least three men. The Minister has said she will appoint the best people, whether they all be men or women. However, that does not comply with Government policy which provides that she should seek to achieve this minimum level of representation.
There are enough women among the best candidates for appointment but there is a bias against them and they should be promoted in the way I suggest. It is in accord with the policy of successive Governments. The Minister need not tell me that Niamh Bhreathnach said that because women should have been appointed to certain school boards the boards were not appointed. If that is the case it is because the men refused to find women qualified for the position.
I agree there should be equal representation of both men and women as far as possible but I am not sure if it can be provided for in legislation. In the debate in the Seanad the Minister said she wanted the members of the board to be selected on merit. There are at least three good women who could sit on this board. It is a matter of advertising for them and persuading them to be appointed. I am not sure how the Minister's interim board is constituted and if it will pose a difficulty when appointing the board.
I recognise the spirit of Deputy Stagg's amendment. I have appointed two good women to the interim board and it is my intention to appoint them to the board when the Bill is passed. I believe the best people should be appointed to boards. This is a small board and from my meeting with the interim board it appears the women members will have much to say and do. I cannot accept the amendment because it requires me to appoint three men and three women to the board. That goes against my beliefs, which is that the best qualified people for the job should be appointed, irrespective of their gender.
When I started in local politics a long time ago Aileen Mallon and myself were the only two women members of Westmeath County Council. Now there is only one woman member. I never felt I was in a minority; my view was that I should get on with the job. Developments in the gender composition of boards should happen naturally, there should be no compulsion.
I strongly believe in the role of women. Their approach is different and they have much to give to debates and decision making. The two women members of the interim board are equal in all respects to their male colleagues. I cannot accept the amendment.
At one point the Minister was president or chairperson of the Fianna Fáil Party's women's group. She produced a list of women—
The Minister of State at the Department of Justice, Equality and Law Reform, Deputy Mary Wallace, did that.
The document was left behind in the Department when I took office. It was very useful because it listed all the suitable Fianna Fáil women from the party's women's group who were available to serve on State boards. I knew many of them, not as Fianna Fáil Party members but as fine people. The document was a recognition by the Minster and her party of the need for positive discrimination.
These developments do not occur naturally and there is a need for intervention to ensure that the imbalance is corrected. There is a serious imbalance in the representation of women at senior level on these boards. The number has stagnated at 30 since the Minister took office. The amendment proposes positive discrimination to right a wrong and an imbalance. I ask the Minister, as former leader of the Fianna Fáil Party's women's group, to ensure it is corrected.
Amendment put and declared lost.
Amendment No. 10 not moved.
I move amendment No. 11:
In page 15, line 13, to delete "functions" and substitute "functions,".
Amendment agreed to.
I move amendment No. 12:
In page 15, line 14, to delete "the calendar" and substitute "a".
This is a technical amendment.
The effect of the amendment would be to substitute "a year" for "the calendar year." Is that the case?
Amendment agreed to.
I move amendment No. 13:
In page 15, to delete lines 43 and 45 and substitute the following:
"(3) The chief executive officer shall manage and control generally the staff, administration and business of the Agency and perform such other functions as may be conferred on him or her by or under the Act or determined by the Agency. He or she shall advise the Agency in relation to the performance of the functions of the Agency and shall make any proper proposals to the Agency on any matter relating to the activities of the Agency.".
The purpose of this and subsequent amendments is to attempt to better define the description of the role of the chief executive, who is central to the work of any organisation. It is important to have the role clearly defined in the legislation. In page 15, lines 43 to 45 outline generally the work of the chief executive. I am trying to expand on that and develop it a little further, as has been done in most other legislation I have looked at. What I am proposing is that while he or she "shall manage and control generally the staff, administration and business of the Agency . . ." and so on, he or she shall also "advise the Agency in relation to the performance of the functions of the Agency and shall make any proper proposals to the Agency on any matter . . .". I do not believe that takes anything from the Bill; in fact it adds to it. That is the basis for my amendment.
I believe we had a good discussion on this on Committee Stage. I will not be in a position to accept amendment No. 13 but some of the subsequent amendments, while they are not quite the same, will strengthen the legal base for the responsibilities of the chief executive.
Amendment, by leave, withdrawn.
Acting Chairman
Amendment No. 14 arises out of Committee proceedings, No. 17 is related and they may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 14:
In page 15, between lines 45 and 46, to insert the following:
"(4) The chief executive officer shall provide the Agency with such information, including financial information, in relation to the performance of his or her functions as the Agency may from time to time require.".
This amendment is similar in intention to the one we discussed previously. It serves to expand the role of the chief executive and to put that into the actual Bill. The chief executive is the main person, as it were, in any State body and it is important that there should be clarity in the performance of the chief executive's duties in the legislation so that there would not be any conflict afterwards between the chief executive and the board. That has happened from time to time, as the Minister knows, on many State boards. When we are drafting legislation, we should make it very clear where the lines of demarcation are and where the responsibilities lie as between the chief executive and the board. That is why these two amendments are put forward.
In relation to amendment No. 14, I am accepting it but I am advised that the word "officer" has to be deleted as the Bill refers to a "chief executive". The amendment should, therefore, state as follows:
(4) The chief executive shall provide the Agency with such information, including financial information, in relation to the performance of his or her functions as the Agency may from time to time require.".
Amendment, as amended, agreed to.
Acting Chairman
Amendments Nos. 15 and 16 are related and may be discussed together, by agreement. Is that agreed? Agreed.
I move amendment No. 15:
In page 15, between lines 45 and 46, to insert the following:
"(4) Such functions of the chief executive officer as from time to time may be specified by him or her may, with the consent of the Agency, be performed by such member of the staff of the Agency as may be authorised by the chief executive officer.".
When I read this Bill, I considered that there was a gap in that there was no provision for somebody to take over the role of the chief executive in the event of he or she being suspended for any reason or being ill or being otherwise unable to perform the duties of the position – except, perhaps, by actually dismissing the chief executive. I believe it is standard in other legislation to make provision for the chief executive's work to be undertaken by somebody on a temporary basis if the need should arise. I notice the word "officer" is again included in my amendment and the Minister may wish to have it deleted. The amendment also has the effect of allowing the chief executive to delegate responsibility if he or she wishes.
I am unable to accept amendment No. 15 but it is very similar to No. 16 which I can accept subject to the removal of the word "officer" where it occurs in the first and second line so that it states as follows:
"(4) The functions of the chief executive may be performed in his or her absence or when the position of chief executive is vacant by such member of the staff of the Agency as may from time to time be designated for that purpose by the Agency.".
There is a slight difference between the two amendments. Amendment No. 15 allows the chief executive, for the duration of his or her absence for a week or two, to personally delegate to the second in line, or whoever, in the staff of the agency. That does not appear to be provided for elsewhere in the Bill. Amendment No. 16 is slightly different in that it comes into play when the chief executive is, perhaps, sick or on holidays or has to be suspended for some reason – perhaps if there was an inquiry in progress. There is a subtle difference between the two amendments and perhaps the Minister would look at them again. The first gives the chief executive the authority to delegate; the second provides for a temporary replacement for the chief executive.
As I said, I cannot accept amendment No. 15 but I will accept amendment No. 16, with the removal of the word "officer" in the two lines where it occurs.
May I put it to my colleague, Deputy Stanton, that the agency will now have power to devolve powers from one person to another. It might be quite dangerous to give the chief executive a direct legislative power of devolving responsibilities.
Amendment, by leave, withdrawn.
I move amendment No. 16:
In page 15, between lines 45 and 46, to insert the following:
"(4) The functions of the chief executive officer may be performed in his or her absence or when the position of chief executive officer is vacant by such member of the staff of the Agency as may from time to time be designated for that purpose by the Agency.".
Acting Chairman
We have already discussed No. 16 with No. 15 and the Minister has put forward an amendment to Deputy Stanton's amendment. I ask the Minister to read out the amended amendment.
I move amendment No. 1 to amendment No. 16:
"(4) The functions of the chief executive may be performed in his or her absence or when the position of chief executive is vacant by such member of the staff of the Agency as may from time to time be designated for that purpose by the Agency.".
Amendment to amendment agreed to.
Amendment No. 16, as amended, agreed to.
Mr. Stanton: I move amendment No. 17:
In page 15, between lines 45 and 46, to insert the following:
"(4) The chief executive officer shall be responsible to the Agency for the performance of his or her functions and the implementation of the Agency's policies.".
If I heard her correctly, the Minister stated earlier that she was prepared to accept the amendment.
With which amendment are we dealing?
Acting Chairman
We are dealing with amendment No. 17, which was discussed with amendment No. 14. The Minister put forward an amendment to amendment No. 14, which was agreed to. What is the position regarding amendment No. 17?
I do not see the point of amendment No. 17 which states that "The chief executive officer shall be responsible to the Agency for the performance of his or her functions and the implementation of the Agency's policies.". The chief executive must be responsible to the agency and, therefore, the amendment is unnecessary.
If the Minister believes the amendment is not necessary, I will accept her advice. I have seen similar provisions included in other legislation. However, I will withdraw the amendment.
Amendment, by leave, withdrawn.
I move amendment No. 18:
In page 16, to delete lines 1 and 2 and substitute the following:
"(5) The chief executive officer shall not be a member of the Agency. However, he or she will have the right to attend meetings of the Agency and to address the Agency on matters relating to the performance and functions of the Agency.".
I am concerned that chief executives are permitted to be members of agencies, particularly the agency in question, and boards thereof. In the area of education, with which the Minister and I are both familiar, the principals of schools are not members of boards of management. There is a danger that, if he or she is a member of a board, a chief executive could dominate that board. The chief executive will be a full-time employee and it would be better if he or she reports to the board of the agency, is responsible to it but is not a member of it. There would, as a result, be clearer lines of responsibility and clear lines of demarcation between the role of the chief executive and that of the board. The amendment suggests that the chief executive may act as secretary to the board, attend its meetings, etc., but may not take part in making decisions which would impact on his or her role within the agency.
Consideration should be given to this matter because difficulties have arisen in respect of a number of State boards. This amendment represents one way of addressing such difficulties.
I am strongly of the view that the chief executive officer should be a member of boards and, consequently, I do not propose to accept the amendment.
In light of the Minister's strong views, I will withdraw the amendment.
Amendment, by leave, withdrawn.
I move amendment No. 19:
In page 16, between lines 35 and 36, to insert the following:
"(6) Each consultant and each member of the staff of the Agency at a grade or level specified in section 28(2) shall not, for a period of twelve months following his or her resignation, removal or retirement from office, hold any office or employment or act as consultant where he or she may be likely to use or disclose information acquired by him or her in the exercise of the functions of the Agency.”.
This is a tricky issue. I apologise for not being present for the Committee Stage debate but I had to be away.
The amendment attempts to highlight that in recent years many members of staff – the term "consultant", which might be more problematic, is also included in the text – of State bodies and agencies, planning boards, etc., have been invited to leave their positions and take up employment in the private sector. I accept it is their right to do so, but when they leave they take with them a wealth of information and contacts. A great deal of the information they possess might be confidential in nature and is tantamount to being inside information. If these people go to work for a developer or private operator, they bring with them the information to which I refer which, in a way, places their new employer at an advantage vis-à-vis other companies that might be tendering for contracts, etc. We must take account of that when drafting legislation.
I am not sure if the amendment can work in practice, but it refers to a matter which is the cause of great concern, particularly as it relates to the planning process. We are establishing quite a powerful agency and it is possible that senior members of its staff could be invited to leave and become consultants to or employees of private sector companies. I am not sure how this matter can be addressed but I am of the opinion that the type of occurrences to which I refer give rise to certain difficulties. I am interested in hearing the Minister's comments on the amendment and discovering whether she recognises that the difficulties to which I refer occur from time to time. Senior officials working in the State and semi-State areas are often lured away from their jobs which can be to the detriment of local authorities and semi-State boards. I would like to hear the Minister's comments on that matter and on the amendment.
I support the amendment. We discussed this matter at length on Committee Stage in Deputy Stanton's unavoidable absence, when his party colleague pressed the amendment strongly. We discussed situations which had arisen, particularly those that came to light during the mini-CTC inquiry which is in abeyance at present, where senior members of staff who negotiated deals with contractors were, the next day, on the opposite side of the table acting on behalf of those with whom they had negotiated in the first instance. The amendment is designed to ensure this does not arise. This matter must be addressed. I accept the Bill deals to a degree with declarations of interest. However, the transfer of people from the public to the private sector must be addressed. There is precedent for this in other legislation.
Section 23(7) states that "A chief executive of the Agency shall not, for a period of 12 months following his or her resignation, removal or retirement from office, hold any office or employment or act as consultant where he or she may be likely to use or disclose information acquired by him or her in the exercise of the functions of the Agency.", and, therefore, the chief executive is covered in this regard. On Committee Stage I stated that I would consult the parliamentary counsel about this matter. He had previously informed us that matters of labour law are better dealt with within contracts of employment or service than in legislation. Everyone agreed that a consultant could not be prevented from taking up another commission or job if he or she had already being doing a similar job.
All Members were concerned about what emerged at the mini-CTC inquiry, namely, that four members of staff of a public sector company moved into the private sector. However, the individuals strongly asserted that they had done nothing wrong.
The recently revised code of practice for the governance of State bodies recommends that the board of a State body should, in a manner most effective to such body, deal with the issue, post resignation, retirement, employment, appointment and-or consultancy, of entry of its directors and employees into the private sector and should ensure that any procedures it may have put in place in this regard are monitored and enforced. This revised code was issued approximately two months ago and is quite strong in its intent. The advice we obtained from the parliamentary counsel is that, with the exception of catering for chief executives, this matter should not be dealt with in legislation and that the code of practice should be adopted, obeyed and monitored by the railway procurement agency.
I thank the Minister for her reply, which makes a certain amount of sense. I am glad she acknowledges the difficulties that have arisen in this area in the past. The chief executive is precluded from taking up office or employment for a further 12 months following his or her departure from the agency. However, the person down the ladder from the chief executive may also have knowledge of the inner workings of the agency. I urge the Minister to ensure that the agency, when in place, introduces codes of practice and contracts of employment to ensure such knowledge is not abused. I am not suggesting it will but people could be tempted by way of an offer they could not refuse. Such a person could leave the agency and work for the betterment of a company in the private sector. This is a big issue and it is happening more and more. The Minister said the only way to deal with it is through employment law. Can we do that or does a constitutional problem arise?
No, I may have been misconstrued on that point. A person could take a case in labour law against an employer who places, through legislation, such an onerous containment on them. I am sorry I gave the wrong impression.
Yet we include such a provision for the chief executive. What is sauce for one should be sauce for another. Could chief executives also take such cases?
Not if it is covered by legislation.
Acting Chairman
We are dealing with Report Stage.
He or she would be aware of the ramifications when taking up the job.
Amendment, by leave, withdrawn.
I move amendment No. 20:
In page 20, between lines 45 and 46, to insert the following:
"(2) The chief executive, a member of the Agency, a member of the staff of the Agency, or a consultant, adviser or other person engaged by the Agency shall—
(a) notify the Agency of a potential conflict of interest or circumstance inwhich the person has a doubt about a conflict of interest, and
(b) desist from pursuing an interest that they know to be in conflict with the work of the Agency.”.
This amendment deals with conflicts of interest. I acknowledge the Bill provides for the disclosure of information by a person with a material interest. We must look a little further at this issue. A person may have a negative interest in something. Work which the agency proposes to carry out may impact in a negative way on a person or his or her property etc. My amendment seeks to place an onus on the staff of the agency to notify it of any conflict of interest. A person must not carry out work in which he or she has an interest if that interest conflicts with the agency. Such a provision, which is contained in other legislation, adds to the Bill. The inclusion of such a provision would fill this gap in the Bill.
There is no gap. This matter is extensively dealt with in section 28(1) and (2) whereby the chief executive, consultant, staff and each member of the agency is required to make a declaration of interests. Section 29 states:
where such a person has a pecuniary interest or other beneficial interest in, or material to, any matter which falls to be considered by the agency he or she shall–
(a) disclose to the agency the nature of hisor her interest in advance of any consideration of the matter,
The provisions already contained in the Bill are stronger than those which Deputy Stanton seeks to insert.
(b) neither influence nor seek to influence a decision in relation to the matter,
(c) take no part in any consideration of the matter,
(d) if he or she is the chief executive, a member of the Agency, or a member of the staff of the Agency, withdraw from the meeting . . .
Sections 28 and 29 are very particular on this issue. Section 29(4) provides a mechanism for establishing whether someone has a conflict of interest which obviates the need for part (a) of the Deputy's amendment.
Far from the Bill not containing any reference to this matter, it contains approximately three or four pages on it. The provisions laid down in the Bill are stronger than those tabled in Deputy Stanton's amendment and are far-reaching and precise.
I acknowledged that the Bill contains strong provisions in this area. I am simply making the point that they merely seek to deal with a person's positive interest – I think the word "pecuniary" was used. My amendment seeks to deal with a person's negative interest in the matter. It places on onus on such a person to cease pursuing an interest which is in conflict with the work of the agency.
Amendment, by leave, withdrawn.
I move amendment No. 21:
In page 22, between lines 24 and 25, to insert the following:
"(5) The First Schedule to the Freedom of Information Act, 1997, is hereby amended by the insertion therein of a reference to the Agency.".
When I tabled this amendment on Committee Stage, the Minister made the argument that it is the Department of Finance and not she who deals with such matters. There is nothing laid down in legislation to suggest that the Department of Finance deals with such matters; it is merely an administrative arrangement between Departments. It is nothing more or less than that.
I compliment the Minister for accepting on Committee Stage the idea of a worker director. From my research, she is the first Minister in this Government to create a worker director. No other worker director has been created though many have been done away with. The Minister should take her courage in her hands – we have the authority between us in this House—
I knew Deputy Stagg was leading up to something.
It is important that the new agency is seen to be transparent and that information is available to the public. It will be available because of the Minister's latitude on the floor of the House in answering questions for us. The Minister will answer such questions for us whilst she remains in Government – she will probably promote it following the election as she will not hold the same role then.
First, we have to get back.
The Minister has already taken a giant step so perhaps she could take a baby step and ensure the agency will be subject to the Freedom of Information Act.
I would be very partial to the agency coming under the remit of the Freedom of Information Act but the Department of Finance, which governs all our dealings, is the lead Department regarding that Act. That Department makes the amendments to the First Schedule to the Freedom of Information Act – that provision was enshrined in the Act when introduced by Eithne Fitzgerald – to allow for the inclusion of the Railway Procurement Agency for the purposes of this Act. As I said on Committee Stage we will liaise immediately the Bill becomes an Act, with the Department of Finance and insist it moves straight away to bring it under the remit of the Freedom of Information Act.
Amendment, by leave, withdrawn.
I move amendment No. 22:
In page 25, between lines 7 and 8, to insert the following:
"37.–It shall be a requirement that CIE, or any of its subsidiaries, make available all relevant information either to the Agency, or any other person with the consent of the Agency, who intends to apply to the Minister for a railway order.".
Section 37 states that the agency, CIE or any other person with the consent of the agency may apply to the Minister for a railway order. It strikes me that of all the bodies mentioned, CIE would have at its disposal a great deal of information pertaining to the making of railway orders and would be at an advantage vis-à-vis any other body that might wish to apply for one. It is important in order to level the playing field that this information be available. I note the ESB was required to make information available during electricity deregulation whereby different bodies had to apply for licences in that area.
Acting Chairman
As it is now 1.30 p.m. I am required to put the following question in accordance with the Order of the Dáil of this day: "That Fourth Stage is hereby completed and the Bill is hereby passed."
Question put and agreed to.
Acting Chairman
The Bill, which is considered by virtue of Article 22.2º of the Constitution as a Bill initiated in Dáil Éireann, will now be sent to the Seanad.
Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.
