National Treasury Management Agency (Amendment) Bill 2014: Report Stage

I move amendment No. 1:

In page 10, between lines 23 and 24, to insert the following:

“(2) Every direction (other than an order under section 1(3)) made under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order is passed by either such House within the next 21 days on which that House has sat after the order is laid before it, the order shall be annulled accordingly, but without prejudice to the validity of anything previously done under the order.”.

Tá plé déanta againn ar an stiúir gur féidir leis an Aire a thabhairt go dtí an eagraíocht, agus a chaithfidh an eagraíocht a chomhlíonadh. Tá mé ag moladh go mbeadh sé riachtanach achan stiúr atá tugtha ón Aire a leagadh os comhair Tithe an Oireachtais. Ba cheart go mbeadh deis ag Tithe an Oireachtais deireadh a chur leis an stiúir sin trí rún a ghlacadh taobh istigh de 21 lá, ach gan aon rud a bhí déanta taobh istigh den 21 lá sin a bheith curtha ar ceal. Tuigim agus mé ag léamh an leasú arís go bhfuil cuid de na focail ann mícheart. Sílim go raibh plé fada againn ar an ábhar seo ar Chéim an Choiste agus go dtuigeann an tAire an méid atá ráite agam. Tá cúpla tagairt do "ordú" in áit "stiúir". Is é an rud atá i gceist anseo ná go mbeimid ag déileáil leis an stiúir atá tugtha ón Aire.

Much of this has come from Committee Stage proceedings. The concern is that directions issued by the Minister of the day will not be laid before the Houses of the Oireachtas and could not be annulled by a resolution of the Houses within 21 days. A concern raised by the Minister of State on Committee Stage was that this amendment could prejudice the validity of anything arising within the 21 day period. While there is a mistake in the wording, what we have done conceptually to address that concern is to provide that anything which has taken place in relation to a direction would not be invalidated by a resolution of the Houses where it occurred within the period prior to the resolution being made. It is very important given the other sections in Act.

The Minister of State said that a direction by a Minister is not as important as an order. An order under section 4 must be laid before the Houses of the Oireachtas and could be annulled but it is stated that a direction does not carry the same weight. I point out to the Minister of State section 19(5) of the Bill, which allows the Minister for Public Expenditure and Reform to give a direction with the consent of the Minister to the agency as to the performance of its function under the section and requires that the agency shall comply with any such directions. There are numerous references to directions within the Act. This one is more severe than others as it also provides that the agency shall comply with any such direction. It refers to directions under section 19, which are directions whereby the Minister can direct the agency to sell off some of its assets. Section 19(3) deals, for example, with the acquisition or disposal of any interest or asset of the designated body. This is where the potential privatisation of a State asset comes into question. Where that happens, it will not be by way of an order but of a direction of the Minister.

When we look at the definition and rules governing directions, we see no requirement to lay them before the Houses of the Oireachtas, nor do we see a provision that the Houses can annul them within the next 21 days of sitting. That is what our amendment seeks to do. I do not understand why this provision would not be accepted by Government. The Minister has said that the Government has a majority in the Houses of the Oireachtas and that this is just run-of-the-mill stuff. Why do we allow for an order in that case? If an order must be subject to the safety net of being laid before the Houses and to a power to annul, why is the same safety net not provided for in respect of a direction, particularly given the significance of the directions that can be given under section 19(5) of the Bill?

I note that the Deputy's amendment reproduces the provisions of section 4 as it stands. That section contains a standard provision requiring that orders made by the Minister be laid before the Houses of the Oireachtas and may be annulled by a resolution of either House within 21 days. The practice in legislative drafting is that where an Act gives a Minister a power to do something that expands the scope of the Act, such as extending the list of entities to which the legislation will apply, the power shall be exercised by way of a regulation or order made by the Minister. It will be provided that such regulation or order must be laid before the Houses of the Oireachtas. In the Bill, orders are required to add to the list of bodies to which NewERA may provide advice, to add to the list of sectors where NewERA may develop investment proposals, to add to the list of bodies within the remit of the National Development Finance Agency, NDFA, and in respect of a number of instances in Part 5 which relate to the State Claims Agency. The provisions generally expand the scope of the Act and it is appropriate that they should be laid before the Houses and that the Houses should have the opportunity to consider them. This is normal practice for secondary legislation.

Acts may also contain provisions allowing Ministers to issue executive instructions on the administration of a function under such Acts. There is no set term for such executive instructions but the word usually used is "direction". The word "instruction" is also used in the Bill in relation to certain provisions being carried over from the existing National Development Finance Agency Act 2002. There is no convention that directions and instructions are published. Directions can be given under a number of sections in the Act. The Minister for Public Expenditure and Reform may issue directions to State authorities on the financing of public investment projects. The Minister for Finance and the Attorney General may issue directions to the National Treasury Management Agency, NTMA, on the management of legal costs while the Minister for Finance may also issue directions on the final reports of the National Pensions Reserve Fund, NPRF, Commission and the NDFA. These are part of the normal executive functions of Ministers. They enable Ministers to do their jobs relating to the bodies under their aegis. It would be completely inappropriate that every such direction should have to be laid before both Houses and be subject to annulment for a period of 21 sitting days.

There are two notable direction provisions. Sections 42, 43 and 47 have to do with directions given by the Minister for Finance to the agency to use Irish Strategic Investment Fund, ISIF, funds to invest in financial institutions. As I said on Committee Stage, this is the provision that was used to recapitalise the banks with NPRF funds during the financial crisis. We are carrying the provision over as a sensible precautionary measure. At this juncture, we have no wish, intention or expectation that the power will ever be used. However, if the circumstances ever arose, it must be possible to take decisive action and inject money rapidly into the sort of crisis or time critical situation that we have seen in so many countries in the last decade. It will, of course, be open to the Minister for Finance to have such an intention debated in the House as time allows. I expect that this is what would happen except in the most extreme circumstances. Governments must have the ability to act quickly and decisively when the need arises. Such directions may often relate to one-off transactions. In such circumstances, I do not see how a provision that a direction may be annulled without prejudice to anything previously done under the direction could be applied. With regard to publication generally, directions on recapitalisation may well include commercially sensitive elements as between the Minister and the NPRF. On that basis, there should not be a blanket requirement to publish.

There is a further power of direction in the Bill in section 19(5) whereby the Minister for Public Expenditure and Reform may give directions to NewERA as to the performance of its functions. The Minister must publish such directions as soon as is reasonably practical in such manner as he or she considers appropriate. The most obvious place is the website of the Department itself. The proposed amendment would cut across the provision by requiring the direction to be laid before the Houses with the possibility of annulment within 21 sitting days. Again, these directions are part of the Minister's executive functions. The power of direction will allow the Minister to ensure that advice prepared by NewERA would take account of issues the Minister considers important. I cannot see how it is the role of the Oireachtas to police how the Minister seeks advice up to and including annulling a direction he or she issues to ensure that the advice meets his or her needs.

The issue of directions was debated at some length on Committee Stage and, having reflected on it, we are satisfied that the provisions about directions are measured and appropriate. As stated on Committee Stage, directions will be subject to the Freedom of Information Act and the provisions built into that legislation to ensure the commercial and other interests of the State are protected.

My focus on Committee Stage was on section 19(5). Let us deal with that. What are designated bodies? This is where directions can be given concerning designated bodies. The previous section tells us that designated bodies are ESB, Ervia, Bord na Móna plc, Coillte Teoranta, EirGrid, Irish Water or any other State body specified in an order under subsection 3 or a subsidiary of any company. It involves State agencies. This direction under section 19(5) is that the agency shall, if a Minister of the Government who is a relevant Minister in relation to a designated body requests it to do so, provide project management services in relation to, or services consisting of overseeing the winding up, reorganisation or restructuring of the designated body. The Minister can give a winding up direction about ESB, Ervia, Bord na Móna plc, Coillte Teoranta, EirGrid or Irish Water. Under subsection 7, he or she would rightly have to publish this in a manner of his or her choosing. In my view, the direction should be an order, because if it were an order it would be laid before the Houses of the Oireachtas and be subject to the provisions whereby it could be annulled within 21 sitting days, but if it is not going to be an order, the direction carries such a significant weight that the Houses - not at the Minister's choosing, but in Irish statute law - should have the right to vote and debate those issues and annul the direction given by the Minister, not because the Cabinet decides to have a debate on the issue, as will be the practice, but because of the protection in Irish law of the designated bodies or State agencies and the direction that may be given on the reorganisation, restructuring or winding up of those agencies at any future date.

There are no new powers conferred on anybody in respect of any of these issues. If, as a Minister of State, I wanted to sell off one of the designated bodies, I could only do so under the existing Acts that govern the sale of the body, should the power exist. There is no question of privatisation or any issue such as that. If the existing legislation, separate from this Bill, exists, then we can or cannot. No new powers are conferred on any body. The last day I gave the example of Irish Water and the potential issue of privatisation. The Act expressly forbids that. One cannot sell it and the legislation does not allow it. The only way to do so is to pass new legislation to change the existing Act. There is no provision in this Bill to allow anyone to override the legislation. Whatever protocols exist in respect of other State bodies also apply to this.

When the Minister of State introduced this Bill, he set out how it involved the transfer of some €6.9 billion from the National Pensions Reserve Fund to the Ireland strategic investment fund, a major proposal by any standard. It is a major proposal in the realm of finance. The Bill was taken on Committee Stage in the Select Sub-Committee on Finance. I would like the Minister of State to tell us why the Minister for Finance is not here to take the Bill in the Dáil. I mean no harm to the Minister of State, but he is a Minister of State at the Department of Communications, Energy and Natural Resources and I want to see the Minister responsible for the NTMA and the key finance issues in the Chamber to answer key questions about how these provisions will work. I would like the Minister of State to provide a rationale for that.

I support the amendment in the name of Deputy Pearse Doherty. It is absolutely correct that any direction made under this Act, which could have serious consequences and results for the various public agencies of the State, should be brought before the Dáil. It should be made explicit in this legislation. Far too much is passed behind the scenes without open accountability to the elected Members. I strongly support the amendment.

Is there a commitment that all directions provided for under the legislation will be published?

In response to Deputy Pearse Doherty, the Minister of State said that under section 19(7), any direction issued by the Minister will be published as soon as practicable in a manner to be decided by the Minister. There are many other references in the Bill to directions issued by the Minister. Is there a complementary requirement to publish all of these directions? If so, in what manner will this be done?

The reference to freedom of information legislation does not inspire me, because none of us should have to be poking around such legislation to get our hands on directions issued by the Minister of the day to the agency in respect of these significant powers. At a bare minimum, directions should be published in a timely and transparent manner. The matter of putting them before the Dáil to a vote is one I support in respect of the substantive directions but, at a minimum, they should be published in a transparent fashion. Does this commitment apply to all directions possible under the Bill?

The Minister of State keeps talking about Uisce Éireann, but we have asked him to deal with other State agencies. It is not about whether the Minister of State, or any other Minister, is getting additional powers to sell off State assets. As the sole shareholder in the company owned by the State, obviously the Minister of State has the power to sell State assets unless he is prevented from doing so by legislation. The Bill creates a framework whereby advice can be sought from the agency to examine the disposal or reorganisation of State assets. The legislation allows the Minister to outsource the selling of the State assets to the agency. That is provided for in section 19. It allows the Minister of State to sell the ESB and to engage project management in respect of the sale of the ESB. The Minister of State can, by direction, give the authority to project manage it under section 19(3) of this legislation. The Minister of State must publish the direction issued in a manner he sees fit, but Members of the Dáil and Seanad do not have to be consulted because it is not an order.

If this had to be done by order, it would have to be laid before the Houses of the Oireachtas and would have to allow them the opportunity, if they so wished, within 21 sitting days, to pass a resolution which would annul the order. However, it is a direction rather than an order, which means the Minister can, through the way we are structuring the agency, use the power he has had up until now to ask it to project manage the sale, disposal or reorganisation of any State agency. It is not about the Government retaining power, which means this will not make a difference. What we are saying is that we fear what the Government may do to our State assets. I do not believe or trust the Government or the Minister in regard to what they might do with State assets, because I know their agenda. I know the party the Minister of State belongs to is a party that believes in privatisation. We know the sale of State assets was part of its agreement with the troika. We know where the Fine Gael Party is coming from and we know its ideology on this and, fair enough, it has a mandate to express that ideology. Sinn Féin knows Fine Gael has the larger mandate and can decide what will be done with State assets, but we want to ensure the legislation gives the Houses of the Oireachtas the respect they deserve by allowing them at least to debate the issues. We may lose the vote because of the numbers and the Whip, but at least the legislation should allow for the Houses of the Oireachtas to have a direction such as this laid before them, with the potential of annulment. I refer to a direction issued in regard to State assets, the issue I have been speaking about up to now and which I also raised on Committee Stage.

Under section 42, there is another direction that I consider a scandalous part of this legislation. The section concerns a direction to invest assets of the fund in specified securities of a credit institution or to underwrite or otherwise support the issue of any kind of securities of a credit institution. Therefore, section 42 allows for directed investments to be made by the Minister into banks or credit institutions that are in trouble and provides that the agency must comply with a direction issued under this section. Again, this direction will not be laid before the Houses of the Oireachtas and will not be debated in this House, unless it is "with the consent of the Government". We do not trust the Government.

On Committee Stage, I asked the Minister of State how many times the previous Fianna Fáil government had debated the injection of €31 billion of promissory notes into Anglo Irish Bank. On three separate occasions a promissory note was issued, but none of them ever came before the House. The Minister of State has asked his officials whether these were supported in the House, but the issuing of a promissory note never came before the Houses, because the Government of the day was not required to lay such a direction, or whatever it was, before the Houses or to seek their consent or approval. The Minister of State may be mixing up the promissory notes with the issue of the guarantee. The promissory notes, with €31 billion going to the most bust banks in the country, were not required in legislation to be debated here. Perhaps the Minister of State would say that if he was standing here now dealing with that legislation, the issue of a promissory note should at least be debated before the Houses of the Oireachtas. My point here is that if the Government, or any future government, decides to privatise the ESB, Coillte or Bord na Móna, and decides to use section 19(3) to allow the agency to project-manage that process, this should come before the Houses. It should be up to the Members to bring that resolution to the Houses of the Oireachtas.

Also, if a future government decides to use this money, this should come before the Houses. This money comes from the National Pensions Reserve Fund and is supposed to be for the security of pensioners into the future. This is money that is supposed to be there to deal with the pensions time bomb we face. It is public money. However, if a Minister decides that because the banks are broken and because we want the ATMs to continue working, we should inject €2 billion into a credit institution, and if he can do that under section 42, the least we deserve is that the direction being given by the Minister be laid before the Houses of the Oireachtas and that the Members be given the power to annul that if they can garner a majority in either House.

The question is this: what does the Government have to fear from proper oversight and accountability? If it did not fear oversight and accountability, it would have no problem with laying such directions before the Houses of the Oireachtas or in giving the same provisions that apply to orders to directives. If it did not fear proper oversight, it would have written this legislation in such a way that a direction to inject our money into banks in the future would be an order and in such a way that the privatisation of a State agency would be an order. However, at the core of these sections is the attempt by the Government to evade the type of scrutiny, oversight and transparency that has been so badly lacking in the past number of years. The Government wants to continue down the same road. That is the crux of this. The Government asks us to take it in good faith and to agree that it will behave responsibly with the powers it has. That is fine, and I believe the Minister of State is genuine in what he is saying and that he does not intend to fritter away the State's assets on broken banks in the future. However, legislation is about putting in protections. It is not about protecting against the Opposition, but about establishing protections for citizens of the State. This protection would allow us the ability to have a debate. The amendment would not give an automatic right to a debate, but it would give the right for Deputies elected on behalf of the people to red-flag an issue. It would give them the opportunity to say an issue is of such magnitude that they believe the direction should be debated in the Seanad or the Dáil and that if the power of their argument was so strong and convincing that they had a majority, this would annul the provision, but would not affect anything that took place within the previous 21 days.

I am passionate about this because it is about transparency and real political reform. We talk about political reform all the time - it is a buzzword here - but unless we allow for more scrutiny and transparency, we should all just go home and let the Government govern the way it wants. Sometimes it seems that is what is happening. Some of the Minister of State's responses have been like that, saying the Government is not giving itself any extra power and that it has a majority anyway. We know that. What is the point? We know this legislation is going to pass and that the Government will not accept any amendment. However, we are here because sometimes the Government comes up with bad legislation and sometimes the debate process is important.

I strongly commend this amendment. At the bare minimum, the Minister of State should look at the directions that can be issued under this legislation, which have severe consequences. There is some validity in his argument that every small direction that can be issued to the agency in regard to the performance of its duties may not need to be laid before the Houses of the Oireachtas. However, there is no big deal with laying anything before the Houses. Laying something before the Houses does not mean there will be debate on it. It is up to Members to look at what is laid before the Houses and consider whether there is an issue that should be examined more closely. If the Minister of State wanted to bring in an amendment of that sort, that would be some sort of compromise. Sections 19 and 42, however, are two cases in which the directions that can be issued are of such potential magnitude that respect should be given to debate, to the Government's political opponents and to the Houses of the Oireachtas by allowing these directions to be laid before them and to be annulled if the majority so wishes.

The point has been well made, but I want to give an example and to hear the response of the Minister of State in regard to it. This concerns the agreement the Government made initially in the memorandum of understanding to sell off the harvesting rights of Coillte, which had been agreed with the troika.

For a long time we tried to discover what the hell was going on, what analysis had been carried out of the plan to sell Coillte's harvesting rights and what the NTMA or NewERA, whichever was supposed to be responsible for the proposed sale, was doing. It was extremely difficult to obtain information and we were screaming for a debate. The only debate on the matter finally took place when we tabled a Private Members' motion. There was a huge external campaign to highlight why selling the harvesting rights of Coillte would be a major mistake and why what was proposed did not add up at any level. Ultimately, under pressure from that big civil society campaign, the Government changed its mind. Up until that point, however, there was nothing which required it to engage in a discussion on the decision, agreed with the troika, to sell off the harvesting rights. We had no right to demand that a matter of such huge import be debated in the House.

To follow on from Deputy Pearse Doherty's point, this is a recent example of how we could not obtain a debate on a major proposal. As matters stand, if this or any future Government decides to dispose of State assets and gives instructions to the Ireland Strategic Investment Fund or the NTMA to facilitate it, we cannot force a debate on the issue. That should be the minimum requirement on the part of any Government in the disposal of State assets.

Some people are missing the point. I repeat what I said earlier, namely, that NewERA does not have any executive functions in its own right. In other words, it advises but does not execute; nor does it take unto itself any power. It was established in an advisory capacity as a source of dedicated corporate finance expertise to be made available to relevant Ministers. It is open to Ministers to request NewERA to provide project management services or oversee the acquisition or disposal of an interest in an asset of a designated body or any winding up, reorganisation or restructuring of such a body. Ministers will continue to be accountable in the normal way for the performance of their executive functions. Obviously, they can be held accountable in dealing with parliamentary questions, motions tabled in the Dáil in Private Members' time, questions on the Order of Business and Leaders' Questions. There is no question of the Opposition or any Member on this side of the House not being able to raise issues of concern to him or her in a variety of ways. There is also the possibility of matters being raised at the relevant committees and of these committees requesting the presence of the relevant Ministers or Ministers of State or interested parties in order to discuss them. Contrary to what has been stated, there is total accountability to the House, its committees and the Seanad on all of these issues.

The issue of the disposal of an interest in a commercial semi-state body was discussed at some length on Committee Stage. As stated, commercial semi-state bodies are all established under legislation in a variety of ways and have statutory functions and obligations. There is no one simple answer to the question of whether a Minister could dispose of an interest in a commercial semi-state body. Legislation relating to State companies generally permits, subject to ministerial consent, the disposal of assets or shares in certain subsidiaries. For example, the ESB was able to sell individual power generation assets without the need for additional primary legislation. In the case of Bord Gáis Energy, however, the introduction of primary legislation was required because the business that was sold - the supply of gas - was a statutory function of Bord Gáis. In the context of Bord na Móna, section 16(3) of the Turf Development Act 1998 provides that the Minister for Public Expenditure and Reform shall not, unless authorised by Dáil Éireann by resolution to do so, reduce his or her holding of shares to less than a majority of the issued shares. There is, therefore, a clear obligation to seek the authorisation of the Dáil in that instance. As stated, the shares in Irish Water - Uisce Éireann - cannot be disposed of under the relevant legislation.

Given that the commercial semi-state bodies on which NewERA will advise are all established under statute, it is extremely difficult to imagine a situation where any of the designated bodies could be sold without amending the underpinning legislation. A critical point is that a potential buyer would inevitably and properly seek legal certainty before committing to acquiring a designated entity. I return to the point that while Ministers may request NewERA to provide project management services or for oversight of the disposal of an interest in a designated body, it cannot do so in its own right. Allowing Ministers to use NewERA does not give them any more power than they already possess in respect of specific State assets. Ministers will remain accountable to the Oireachtas and be obliged to bring before it and justify the need for the required legislation. The effect of amendment No. 6 would be to remove from a Minister the possibility of using NewERA expertise where it is proposed to acquire or dispose of an interest in a commercial semi-state body or to wind up, restructure or reorganise such a body. To the extent that a Minister has the power to do any of these things, as matters stand and in the absence of legislative change, all the provision does is allow him or her to use public sector expertise. If legislation has to be changed in order to do any of the things envisaged, that must happen and every Member of the Oireachtas will have his or her say in that regard.

The National Pensions Reserve Fund Act 2000, under which the NPRF was established in order to pre-fund the burden of pensions on the Exchequer from 2025 onwards, was amended in 2009 to allow the Minister for Finance, in certain circumstances, to direct the NPRF commission to invest in financial institutions. This was the mechanism used to recapitalise the banks following the financial crisis. As stated, we are carrying over this provision as a precautionary measure, with the obvious difference being that the Minister would be giving a direction to the agency, rather than the commission. We do not foresee our ever having to use this provision but, to put the matter in colloquial terms, it is nice to know it is there.

It is clear that the Minister of State and I are not going to see eye to eye on this matter. I am not sure whether he does not understand the position or whether it is just arrogance. Nobody is claiming that NewERA can just start to sell off State assets of its own volition. I am not sure whether the Minister of State is of the view that that is the argument I am putting forward. I must inform him that it is not. He continues to repeat certain things and I am not sure if that is a tactic designed to refute something which has never been suggested in the first instance. We know that what he is saying about NewERA is not the issue because the body does not have the power to sell off State assets of its own volition. I am concerned about the power that can be conferred on the agency, and what we are seeking in that regard is a safety net.

I have already pointed out that Ministers have the power to sell shares, down to a certain level in some cases and in their entirety in others. The Bill, however, allows the Government to use NewERA to project manage and provide advice on reorganising and restructuring semi-state bodies or the sale or disposal of assets. If the Government is intent on selling off State assets, this is one of the tools it will employ. We are seeking to avail of the opportunity to ensure there will be some basic level of protection in the legislation to ensure directions will be given.

The argument of the Minister of State in respect of section 42 is pitiful, suggesting that since the previous Government did it, the Government is simply leaving it the way it is. This will probably remind the Minister of State of Uisce Éireann, because the Uisce Éireann legislation rightly has a section stating that the Minister cannot sell off the shares. All it means is that when the Government decides to sell off Uisce Éireann, if ever it does, it must come before the Houses and seek approval. It means the initial legislation will have to be amended. The argument the Minister of State is making in respect of section 42 works in exactly the same way, because up until 2009 that was not possible.

Until that point it was illegal to use the proceeds of the National Pensions Reserve Fund to invest in banks. When the Government decided to use that money to recapitalise the banks, it had to change the legislation to allow it to happen.

Your time has expired, Deputy. Can you finish up, please?

My understanding is that there are no time restrictions on the right to reply.

I understand the limit is two minutes, Deputy.

That is on the second contribution, but there are no time restrictions on the third.

That is not what I have before me. I understand you are actually on your fourth contribution. Fair leeway has been given. Please wrap up.

It seems there are no rules governing this one.

The Minister of State maintains that the Government is simply carrying over provisions that already exist in respect of section 42, whereby the Government can raid the National Pensions Reserve Fund. In fairness, it has been this Government more than the Fianna Fáil-Green Party Government that has raided the fund. Perhaps the writing was on the wall, but the current Government was in place in March 2011 when the majority of the National Pensions Reserve Fund was taken and invested into the pillar banks. The argument that the provision was in place and that the Government was simply carrying it over does not stack up.

The point of our amendment-----

Deputy, could you please finish?

If the Government intends to keep the provision, it should at least allow the Houses of the Oireachtas to debate it. The Minister of State has said, rightly, that we might never have to use it, but what if the day comes when the Minister decides to put €6 billion into a failed credit institution? At that point those in opposition and outside the Government will have no recourse to debate the matter in the House, since there would be no legislative basis on which to call for it.

Deputy, could you finish up, please?

That is where this Government is failing deeply in respect of transparency and accountability.

The Minister of State did not really respond about the experience in respect of Coillte as an example of what we are discussing. When the Government committed to sell off the harvesting rights of Coillte, NewERA was dealing with that area. NewERA had been charged with the responsibility for managing something that had been written into the troika agreement. The Government's policy was to go ahead with it up until the moment it decided, under public pressure, that was not going to do it.

During that period we got responses to parliamentary questions, which the Government said we could ask. We asked the questions but we could get little information about what the hell NewERA was doing in terms of preparing for the sale of the harvesting rights of Coillte. If I remember correctly, at the time there were several references to commercial sensitivity put out as the cover for the non-answers about what was going on inside NewERA in terms of preparing for the sell-off of Coillte. The avenue of parliamentary questions, Leaders' Questions and so on was pursued. All these approaches were employed by the Opposition to try to get information but they yielded virtually nothing about what the hell NewERA was up to with regard to the detail of preparing the ground. As Deputy Doherty said, it was not that NewERA or the National Treasury Management Agency per se, with the approval of the Government or the Minister, could undertake the sale. Rather, NewERA was told to go about putting together the nuts and bolts of the sale, and we could get no information about what was going on.

I think I understand correctly what Deputy Doherty is saying. If that sort of work is being undertaken by this body then we have the right to some say in it and it should be debated in the House. That would add necessary transparency to an important area.

I have to put the question at this stage.

Can the Minister of State give an answer? Is he not allowed to?

No. The contributions have concluded at this stage.

Amendment put:
The Dáil divided: Tá, 35; Níl, 78.

  • Adams, Gerry.
  • Boyd Barrett, Richard.
  • Broughan, Thomas P.
  • Browne, John.
  • Calleary, Dara.
  • Colreavy, Michael.
  • Coppinger, Ruth.
  • Doherty, Pearse.
  • Donnelly, Stephen S.
  • Dooley, Timmy.
  • Ellis, Dessie.
  • Ferris, Martin.
  • Healy, Seamus.
  • Healy-Rae, Michael.
  • Higgins, Joe.
  • Mac Lochlainn, Pádraig.
  • McConalogue, Charlie.
  • McDonald, Mary Lou.
  • McGrath, Finian.
  • McGrath, Mattie.
  • McGrath, Michael.
  • McLellan, Sandra.
  • Martin, Micheál.
  • Mathews, Peter.
  • Moynihan, Michael.
  • Murphy, Catherine.
  • Ó Fearghaíl, Seán.
  • Ó Snodaigh, Aengus.
  • O'Brien, Jonathan.
  • O'Dea, Willie.
  • Shortall, Róisín.
  • Smith, Brendan.
  • Stanley, Brian.
  • Troy, Robert.
  • Wallace, Mick.

Níl

  • Bannon, James.
  • Barry, Tom.
  • Breen, Pat.
  • Bruton, Richard.
  • Butler, Ray.
  • Byrne, Catherine.
  • Byrne, Eric.
  • Cannon, Ciarán.
  • Carey, Joe.
  • Coffey, Paudie.
  • Conaghan, Michael.
  • Conlan, Seán.
  • Connaughton, Paul J.
  • Conway, Ciara.
  • Coonan, Noel.
  • Corcoran Kennedy, Marcella.
  • Costello, Joe.
  • Coveney, Simon.
  • Daly, Jim.
  • Deasy, John.
  • Deenihan, Jimmy.
  • Deering, Pat.
  • Doherty, Regina.
  • Dowds, Robert.
  • Doyle, Andrew.
  • Durkan, Bernard J.
  • English, Damien.
  • Farrell, Alan.
  • Feighan, Frank.
  • Ferris, Anne.
  • Fitzgerald, Frances.
  • Flanagan, Charles.
  • Hannigan, Dominic.
  • Harrington, Noel.
  • Harris, Simon.
  • Hayes, Tom.
  • Heydon, Martin.
  • Howlin, Brendan.
  • Humphreys, Heather.
  • Keating, Derek.
  • Kelly, Alan.
  • Kenny, Seán.
  • Kyne, Seán.
  • Lawlor, Anthony.
  • Lynch, Ciarán.
  • Lyons, John.
  • McCarthy, Michael.
  • McEntee, Helen.
  • McGinley, Dinny.
  • McHugh, Joe.
  • McLoughlin, Tony.
  • Maloney, Eamonn.
  • Mitchell, Olivia.
  • Mulherin, Michelle.
  • Murphy, Dara.
  • Murphy, Eoghan.
  • Nash, Gerald.
  • Neville, Dan.
  • Nolan, Derek.
  • Ó Ríordáin, Aodhán.
  • O'Donnell, Kieran.
  • O'Donovan, Patrick.
  • O'Dowd, Fergus.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • Perry, John.
  • Phelan, Ann.
  • Phelan, John Paul.
  • Rabbitte, Pat.
  • Reilly, James.
  • Ring, Michael.
  • Ryan, Brendan.
  • Spring, Arthur.
  • Stagg, Emmet.
  • Stanton, David.
  • Tuffy, Joanna.
  • Twomey, Liam.
  • Walsh, Brian.
Tellers: Tá, Deputies Joe Higgins and Pearse Doherty; Níl, Deputies Emmet Stagg and Joe Carey.
Amendment declared lost.

If Members wish to have conversations, they should do so outside the Chamber. We want to move on to the next amendment.

I move amendment No. 2:

In page 12, between lines 3 and 4, to insert the following:

"(n) advocacy for groups who have been detrimentally affected by the crash of the property bubble and bail out of the financial system.".

I realise that the Government Deputies probably have a lot to talk about tonight, but they will have to talk elsewhere since we are in the throes of very serious business here relating to the National Treasury Management Agency Bill. Our amendment is about the qualifications that should be taken into account to be a member of the National Treasury Management Agency board. The legislation states that six ordinary members shall be appointed by the Minister and the Minister must regard them as having expertise and experience at a senior level in one or more of the following areas: investment, treasury management, business management, finance, economics or economic development, law, accounting and auditing, actuarial practice, risk management, insurance, project management, and corporate finance. Those are all the areas where so-called experts were central to the events that led to the blowing up of the property bubble in this State, to its crash and to the crazed decision that the Irish people should carry the consequences of that crash.

The National Treasury Management Agency is an organisation that manages the most incredible level of public funding in this State. It has massive responsibility for the entire national debt - 120% of gross domestic product, for Government borrowing, for State claims and for the National Pensions Reserve Fund, and it provides management services to the National Asset Management Agency, NAMA, which in turn has tens of billions of euro of bad debts for which the people have been criminally made responsible according to the legislation.

We are providing in this amendment that the Minister should also be able to draw members of that agency's board from those who have expertise in "advocacy for groups who have been detrimentally affected by the crash of the property bubble and bail out of the financial system". People who have that expertise would be much more likely to represent the democratic wishes of the taxpayers of this State than many of those who were so-called qualified people according to the legislation as it exists. There are advocacy groups, including those dealing with people in mortgage distress, with the horrific housing crisis and with the huge lack of social and affordable homes, which is creating such immense distress and suffering in our society. There are people who have expertise advocating for these groups, who represent the majority in society, the victims of the profiteering that went on in the property bubble, the victims of the crash and the victims of the bailout. I assume the Government will accept this amendment in view of how absolutely self-evident it is that representatives of ordinary Irish people - of the working class, middle and low income earners, pensioners, the unemployed and the youth - should have representation on this board. We tabled this amendment to make the point that the way the NTMA board is currently made up is not democratic. It should be democratically accountable in a much more direct way to ordinary people and to taxpayers who should have a democratic input into how such massive institutions are run. We are not at all happy with the proposal with regard to the way the power in this respect is to be given to the Minister. We want to show up how one-sided is the Government's approach to the financial crisis and the management of the finances of this State, in that it proposes to include on the board only those professionals or individuals who are so-called experts - the very ones who were central to the creation of the disastrous bubble and the profiteering by bondholders, bankers, speculators and developers in the Irish property bubble, and were then also responsible for the pressure that was put on, and acceded to by, two Governments - the Fianna Fáil-Green Party Government and the Fine Gael-Labour Party Government - to make the ordinary Irish people carry the responsibility and the pain and debts that were accrued as a result of that. Sin é.

Does Deputy Coppinger wish to contribute?

I would like to contribute.

I support this amendment. As Deputy Higgins outlined, it is fairly extraordinary that the areas of so-called expertise which are to be required for those appointed to the board of the National Treasury Management Agency are the same as those found among the circle of so-called experts in the areas of investment, finance and economics - precisely the cohort of people who failed to grasp what was happening in the economy. In many, if not most, cases they cheered on the property madness that pumped up the property bubble. They failed to see the crash coming and right up to the last minute they were talking about soft landings, denouncing people who were critical of what was going on as being insane or off the wall, and in various other ways vilifying the critics of what the so-called experts were doing. Then they made disastrous decisions about how to deal with the consequences of their own failures. Yet there do not seem to be any lessons learned about that experience. The same gang and categories of so-called expert are wheeled in. It is indicative of our approach, which is still very top-down and elitist, to how we deal with our economy and what is viewed as the purpose of it. The prevailing view seems to be that the people are there to serve the economy, with the economic experts as the ones who know about it, rather than the economy being there to serve the interests, objectives, aspirations and needs of the ordinary people.

In all of these matters we start the wrong way around, and no lessons appear to have been learned about the consequences of doing this, even after the most devastating economic crash. I jest not when I say that the list should read: (a) the dogs in the street; (b) a granny; and (c) any worker in the building industry. We should also include the whole range of other categories of ordinary citizen who drew attention to the fact that what was happening was mad but who were not listened to because they were not considered to be experts, while the so-called experts thought what we were doing was right and did not foresee the crash right up to the last minute. There should be some acknowledgement of this in the make-up of the agency. I am serious when I suggest the inclusion in the list of the dogs in the street and, perhaps, every taxi driver, because it was they, in the context of some of the buildings that were being constructed and the sale prices being achieved for land and property, who knew that what was happening was crazy and was going to go bang. However, the opinions of ordinary people who could see what was obvious were not taken on board, and instead the so-called experts dictated and dominated the debate.

Another group of people who should be seriously considered worthy of being on such boards is people who are actually experts in some of the key areas where investments are likely to be made. The Minister of State will be aware of my interest in the forestry issue. It took a huge campaign on the part of people much more knowledgeable than I about forestry to raise awareness of what was at stake in terms of the sale of the forests, because they understood how valuable a resource it is. Eventually, as a result of their knowledge, the Government was forced to change its mind and acknowledge how valuable the forests are and what a big mistake it would be to sell them off. One could say the same about housing and the people on housing lists, or those who represent them, or distressed mortgage holders. Given how central the issue of housing was and the marketing of housing as a commodity on which to make money, which was a disastrous approach, it is important that membership of boards is at least balanced and includes people who understand that the basic point of housing is to put a roof over the heads of human beings. It might be useful to at least balance the property experts with those people.

It should be open to the Minister of the day to appoint somebody from civic society generally. There is an absolute need to have on boards people with financial expertise and so forth. However, the Minister should not be precluded from appointing somebody whom he or she believes would make a good overall contribution to the work of the agency. The remit of the agency has expanded greatly over the past 24 hours. The scope of its remit is now way beyond what was originally envisaged. It now deals with debt management, the State Claims Agency, infrastructure projects through the newly established Ireland Strategic Investment Fund, and NewERA, and provides support services to NAMA. Its role in the Irish economy is much wider than was ever envisaged. As such, I support the view that the Minister should not be precluded from appointing somebody from civic society, whether from the Society of St. Vincent de Paul or an advocacy body dealing with people in mortgage arrears. I believe this option should be available to the Minister of the day.

What we are dealing with is the advisory board. We have tried to ensure that members of the agency will be well qualified in relevant areas in light of the wide range of functions entrusted to the agency. Notwithstanding some of the constructive points made, I am reluctant to define those areas too closely, as things change over time. I would also note that board members will be appointed on the basis of their expertise and experience and will not serve in a representative capacity. I expect that the Minister will ensure that the members of the agency will, as stated by Deputy Michael McGrath, bring a wide range of experience to the role of overseeing this agency.

In relation to the points made by Deputy Boyd Barrett, I wonder if, in the context of his statement that the dogs in the street should be considered for board membership, he was reading Animal Farm last night.

The Minister of State should read Animal Farm.

I have read it. It sets out the errors of the ways of socialism as defined by our good friend Uncle Joe Stalin.

I am unable to accept this amendment on the basis that what is provided for is adequate and proper, particularly in terms of the significant knowledge that the members will be required to have.

That the Minister of State will not be accepting the amendment is not surprising. For his information, Stalin had nothing to do with socialism. We call that system Stalinism - the horrific totalitarian perversion of the great revolution of the Russian working class and peasantry when they overthrew a horrific dictatorship.

The attitude to this proposal is not at all surprising. The Minister of State said in his remarks that he does not want to narrow the expertise that would be required, but it has been narrowed down to financiers and corporate interests, including big bankers such as Goldman Sachs. The Minister of State has no problem putting people with that type of track record on the board of this crucial agency. In view of the points made on Second and Committee Stages with regard to the need for a major infrastructural drive in the development of social and affordable homes, it is all the more urgent that people who have expertise in dealing with the housing crisis would be involved here. It is clear that the range of so-called expertise outlined by the Government includes people dealing with the financial markets, corporate financing and speculation and wheeling and dealing. These are the same people who wrecked an entire economy and internationally created massive suffering for hundreds of millions of people. The Government stands shamed in narrowing down the potential board to such a class of persons.

One group seriously omitted from the list is that of representatives of pensioners. It should not be forgotten by us in dealing with this legislation that what we are speaking about is the National Pensions Reserve Fund, which was set up to ensure we can meet our pension liabilities into the future. At the very least, representatives of pensioners, possibly elected representatives, should be included on this board to ensure oversight of decisions in regard to how funding from what is still effectively the National Pensions Reserve Fund is being spent, including what it is being invested in and whether it is being used to bail out banks or whatever the hell it is. The other points that have been made stand, but they are one group that absolutely should be represented.

On a serious point, a pensioner or representative of a pensioner could be included if he or she met some of the other requirements. They are not mutually exclusive. In other words, while one might bring the required skills to the table, any other skills one might bring would be important also. Some of the categories mentioned by the Deputy are not excluded.

The only pensioners that will be qualified will be those sitting on a pension pot of €10 million or €20 million.

I have made the point and will leave it at that.

Amendment put and declared lost.

Amendments Nos. 3 and 4 are to be discussed together.

I move amendment No. 3:

In page 19, to delete lines 26 to 44, and in page 20, to delete lines 1 to 13.

This amendment seeks to delete: “The Chairperson and the Chief Executive shall not be required to give account before a Committee for any matter which is or has been or may at a future time be the subject of proceedings before a court or tribunal in the State.” This is breathtaking in its all-inclusiveness. As I recently outlined, the extent of what the agency is involved with is very great indeed. This legislation, despite our objection, envisages the joining up of our publicly owned pension funds with private capital and private capitalists in joint ventures that the Government favours. Therefore, there is potential for considerable litigation in any one of the many areas included in the Bill, let alone in respect of other responsibilities of the agency. I question the inclusion of all-encompassing wording allowing the chairperson and chief executive to refuse to appear before a committee of the elected representatives of Dáil Éireann regarding an issue that was or might be the subject of proceedings before a court or tribunal. How does one know what may be the subject of a tribunal? The provision is incredibly all-inclusive and we object to it.

We had a lengthy discussion on this on Committee Stage, during which I tabled an amendment to delete the relevant provisions. I have refined my amendment so as to seek the deletion of one provision - namely, the one Deputy Joe Higgins has focused on. I refer to the all-encompassing provision that would allow the chairperson and chief executive to refuse to appear before a committee because the subject under discussion could “at a future time be the subject of proceedings before a court or tribunal in the State”. A commission of inquiry is not mentioned, which is interesting in itself.

The provision is far too broad. That an issue discussed and settled in court many years ago could be excluded from discussion at a meeting of an Oireachtas committee does not make any sense whatsoever. It makes no sense that an issue that arose at a tribunal in the past could not be brought up again. One could consider the Department of the Environment, Community and Local Government in this regard. If a committee wanted to investigate or re-examine practices arising from the Moriarty tribunal, for example, and determine whether the Department had learned the appropriate lessons and implemented the recommendations of the tribunal, it might not be able to do so because the provision in the Bill, if applied, could mean the chairperson and chief executive would not be required to give an account of any matter which is or has been or may at a future time be the subject of proceedings before a court or tribunal. They would say they simply could not talk about the matter.

It was not clear whether the matter of GSOC would be subject to a commission of inquiry or tribunal, and an issue arose as to whether the relevant committee had the right to ask individuals to appear before it. With regard to a court case or tribunal in the State, it could be many years before an issue could be discussed at a committee meeting. While there should be provisions to protect sub judice proceedings, etc., the legislation proposed is far too broad. I hope the provision will be deleted.

I support the previous speakers on this point. Essentially, the legislation stipulates that the chairperson and chief executive can choose the topics in respect of which he or she will engage with Oireachtas committees. That is simply unacceptable. The inclusion of issues that may at a future time be the subject of proceedings before a court or tribunal virtually covers everything. Especially with the commercial mandate being given under the investment fund, there will be many vested interests which will threaten legal action over any decision for a prolonged period. Virtually every decision of a commercial nature could well come before a court at some point. It is completely unacceptable to have all such decisions beyond the scope of an Oireachtas committee. It unnecessarily limits the scope of committees in probing various subjects. Our parliamentary committees comprise one of the few areas in which we have democratic accountability outside this Chamber. It should be protected in every respect. The legislation is unnecessarily broad and could significantly impede the work of Oireachtas committees.

Amendment No. 3 would have the effect of deleting subsection (3) of the new section 6B. This would remove the provision that the chairperson and chief executive cannot be required to give an account before an Oireachtas committee of matters that have been or might be before a court or tribunal, as well as the resolution procedure - this is very important - that allows the High Court to settle whether an issue is indeed such an issue. Deputy Doherty's proposed amendment, No. 4, would simply remove the provision that the chairperson and chief executive cannot be required to give an account before an Oireachtas committee about matters that are, have been or might be before a court or tribunal, but leave the resolution mechanism via the High Court in place.

Section 12 inserts a new section to provide for appearances by the chairperson and chief executive officer before an Oireachtas committee other than the Committee of Public Accounts. Subsection (3) provides that a chairperson or chief executive does not have to account for any matter that has been, is or may be the subject of proceedings before a court or tribunal. Subsections (4) and (7) deal with circumstances in which the chief executive or chairman takes one view and the committee takes another view. Therefore, the committee has to form this view. If the issues cannot be resolved, the High Court can be asked to decide on them. This is a standard legislative procedure in regard to this issue. I do not believe an exception should be made in respect of the NTMA.

Debate adjourned.