Vol. 847 No. 1
We are seeking the deletion from the Bill of the part of section 12 which states:
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.
I wish the Minister of State would leave aside the briefing notes.
I am not looking at the notes, I am looking at the Bill.
He should talk directly to us in the language that we and our people understand.
That is no problem.
The Minister of State should tell us how he believes this measure could not be used by the chairperson or chief executive of the agency to avoid coming before an Oireachtas committee on issues in respect of which they do not wish to be accountable at a particular time. The Minister has seen what is going on between the Committee of Public Accounts and individuals who were at one stage in the leadership of the Rehab organisation as well as the associated issues relating to people who were part of organisations in receipt of significant State funding. I realise it is not the same thing but nevertheless these people should be accountable. Instead, up to now they have found ways to avoid being asked the necessary questions on behalf of the taxpayer.
Does the Minister of State believe for one minute that such a situation could not arise given the great width of the brief of the National Treasury Management Agency? The agency touches vast areas of economic life as well as the numerous commercial private interests that it could be involved with. This is a recipe for escaping accountability or potentially escaping accountability on crucial issues. The Government should withdraw it now.
Common sense applies here. If there is a court case or if there are issues and a dispute, we resolve them, if necessary by going to the High Court. No High Court judge would look favourably on anyone who was obfuscating and refusing to answer proper and germane questions in respect of their role. At the same time they would also have to recognise and acknowledge the fact that if there were significant legal and other issues involved, it may not be appropriate for someone to say something, in particular when the matter was before the courts. We are not accepting the amendment.
Deputy Higgins, how stands the amendment?
I want to sum up now briefly but importantly just the same. This is absolutely ridiculous. The Minister of State has just provided a menu in a potential situation that could arise. People in charge of public agencies who should be responsible to the Dáil could bring about a situation amounting to ducks and drakes up to and back from the High Court and so on. We have seen this with the tribunals and how it can absolutely frustrate an attempt to get the truth and the facts in respect of serious issues. It is perfectly simple. If a matter is sub judice and if discussing it in a committee could prejudice proceedings, then that is fine and no one disagrees with it.
However, does the Minister of State acknowledge that what the Government is providing for in this measure - "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" - is very wide in its application? It is incredible that the Government is including a measure that could be used to frustrate a quest for truth and fact on critical issues that affect taxpayers.
Amendment No. 4 cannot be moved.
I move amendment No. 5:
In page 22, between lines 39 and 40, to insert the following:
"(9) The Agency shall maintain a register of declared interests of all members of the Agency which will be publicly available including on the Agency's website.".
I will not go over this ground again. I have refined the amendment which referred to members of the agency only, not all staff. There should be a register of declared interests. It is terrible governance that the only place in which to find a register of declared interests is the minutes of a meeting. One would have to trawl through the minutes of various meetings. The agency should, at a minimum, maintain a secret register of declared interests. For the purposes of transparency though, that register should be public. Each Deputy must declare interests. Someone who is a member of the agency should also declare his or her interests. This relates to the core issue in some of my amendments - transparency and accountability. The public and investigative journalists uncover failures to declare interests. This has happened time and again throughout Irish history, not just in the 1940s or 1950s but regularly. If one does not have a register, one will not be able to engage in this type of investigative journalism to determine whether, when an agency makes a decision on X, Y or Z, one of its members has an undeclared interest. Legitimate questions could be asked about whether that person had absented himself or herself from the meeting or tried to influence its outcome.
The National Treasury Management Agency is subject to the Ethics in Public Office Act and specific disclosures of interest provisions are set out in the Bill. The members of the NTMA will be designated directors under the Ethics in Public Office Act and required to make annual disclosures of interest statements under same. These statements are made to the Standards in Public Office Commission, SIPO, and copies are retained in the NTMA. The statements are kept for 15 years. NTMA staff members designated under the Act also make annual statements but to the NTMA only.
The code of practice for the governance of State bodies requires that, on appointment, board members should disclose any interest that may cause a conflict. Details of interests disclosed should, as the Deputy mentioned, be kept in a special confidential register and updated annually. Changes in the interim must be notified to the secretary as soon as possible by members. Only the chairperson, the secretary and chief executive should have access to the register. The NTMA already keeps a register in respect of members of the advisory committee and will do so in respect of the board. The treatment of members as regards the disclosure of interests is the same as that of members of the boards of other public bodies. These arrangements are more than adequate. Having set out the process, I hope I have helped to allay the Deputy's concerns. Given what is in place, we cannot accept the amendment.
I am disappointed. The question of a register of declared interests should not just be addressed in this legislation but also become the subject of a wider debate, including on our roles. Deputies declare assets but not debts. In the past two years the media have been able to uncover that a number of Ministers have debts with financial institutions. Questions were raised about the appropriateness of lobbying institutions using headed State paper and so on. One Minister reportedly had soft loans from an institution, an individual in which, Mr. Michael Fingleton, had provided a very soft loan for another Member of the House who had been the subject of the Moriarty tribunal. The problem is that our register of interests only deals with assets, not liabilities. One is probably more in the pocket of the banks in the decisions one makes if one owes them €400,000 or €500,000, depends on them to restructure one's business portfolio or debts or is in fear of losing one's home or farm.
There needs to be greater transparency in the registering of declared interests, albeit within limits that could be addressed through regulations. All of the agency's members are appointed by the Government. A register of their declared interests should be publicly available. Every Deputy can make a mistake, but it is because of public scrutiny that complaints have been made to the SIPO, for example, about Deputies not declaring interests about which the public knows because people live next to them, know that they have rental properties that were not included in the register or know that one of their properties may have been the subject of a lengthy tribunal of inquiry process because it was not declared. These are important issues, but if there is no register, there is nothing for the public to go by. This leads to the greater risk of members of the agency not declaring interests and it never being uncovered.
I support the amendment. It is not good enough to confine this measure to people making declarations if they believe there are conflicts of interest. The Government voted down the idea that representatives of ordinary people should be considered for membership of the board. This has left all of these other categories of investment, treasury management, risk management and corporate finance. It is inevitable that we will end up with people who have fingers in many pies in private capitalist institutions and enterprises. The least taxpayers should expect with the agency in charge of considerable tranches of public funding, supposedly on their behalf, is that its members' interests would be made public. What is wrong with this in the eyes of a Government that is supposedly in favour of transparency and accountability?
It is clear that people must register their interests. Some individuals who will serve on the board will not be natives of this country or will work abroad, but we will want to be able to avail of their specialist expertise. It is appropriate that their interests be declared on a register, but this need not be in the public domain. I see no conflict between this measure and what we want to do.
I reject the amendments, as I said earlier.
I am looking at what is set out in black and white in the legislation. There is no requirement in the legislation for a register of declared interests to be maintained by the agency. If there is such a provision in the legislation, the Minister of State might outline the subsection that provides for it, outside of the minutes.
To be helpful to the Deputy, the regulation applies under the Ethics in Public Office Act. It is obliged in that respect under the Act.
Okay. It is a private register of declared interests - a private, secret document that is being maintained by the agency. It is clearly written in the legislation that where there is a declaration in relation to a disclosure of certain interests by members of staff - there is process in terms of who adjudicates on that, for example, the chairman - and if the chairman believes they may have a conflict of interest, a nominated person would do that for them. In the event of a person failing to declare an interest, which would mean he or she would be in breach of the legislation and the law, he or she would not be removed from the agency. That drives a coach and four through the Minister of State's suggestion that the Ethics in Public Office Act provides for the holding of a private register and everything will be fine. It is set out in black and white in the legislation that the Minister has the power to remove a person from the agency, but a person who breaks the law and fails to disclose a conflict of interest - which means he or she would continue to participate and influence decisions - would not be automatically removed from the agency. We should get real about this. This sends out the wrong signal. It should be black or white. If one fails to disclose a conflict of interest, one should be off the board and that should be grounds for automatic dismissal. The Minister of State might enlighten us on the circumstances where it would be deemed to be appropriate for a member of the agency, who conceals from the rest of the staff a conflict of interest and is subsequently found out, to stay in his or her position. We are not talking about an agency that is pushing around a few €100 here and there; we are talking about billions of euro of the Irish State's money and major investments and decisions. I ask the Minister of State to inform the House of where he would see that situation arising.
That concludes the debate on the amendment and it is now a matter of whether the Deputy wishes to press it.
The Minister of State is not allowed to respond.
That is the rule.
Amendment No. 6 is in the names of Deputies Pearse Doherty, Higgins and Coppinger, amendment No. 7 is a physical alternative to amendment No. 6; therefore, amendments Nos. 6 and 7 will be discussed together.
I move amendment No. 6:
In page 26, to delete lines 21 to 26.
I will deal first with amendment No. 7 which is a compromise amendment and was tabled with gritted teeth in the realisation that the Government will not delete lines 21 to 26 on page 26 of the Bill. This amendment provides that if the Government decided it wanted to enlist the project management services of the agency in terms of the winding up, reorganisation or restructuring of a designated body, any request from a Minister under this subsection would require the prior approval of the Houses of the Oireachtas. It is another formula in regard to the directions we discussed earlier. There were suggestions that the directions would be too wide. This proposal in respect of section 19(3) is clear. If the Minister believed under these limited circumstances a proposal involved the acquisition or disposal of any of our designated bodies - the winding up, reorganisation or restructuring of a designated body - he or she should have to come to the Houses for approval in relation those matters. If they are not contentious, the Minister would get approval without delay and if they are, there rightly would be a heated debate in this and the Upper House on these matters. It is about accountability, holding the Government to account and making sure that matters have been fully teased out by Members of these Houses before a decision is taken. It does not in any way preclude the Minister from using the powers available to him or her in this section, rather it provides for debating them before the Minister gives effect to them.
Amendment No. 6, proposing the deletion of those lines, is one that I would preferably like to have accepted. I do not want the provision in those lines in the Act, which facilitates the potential sale of State assets. It is one of the major flaws in the legislation. It deals with a number of areas and the investment in terms of the Irish economy is to be welcomed. It probably makes up a third of the Bill. The others parts of it are deeply flawed. Given that the Government is refusing to accept any amendment, it is difficult to accept this Bill in the round at the end of the day. This provision is one that would need to be amended before approval could be given to the Bill in its entirety.
What this subsection is about is clear. Subsection (3) states that the agency shall provide project management services in relation to any acquisition or disposal of any interest or any asset of the designated body if the Minister who is the relevant Minister requires it to do so. Let us consider the designated bodies. The Electricity Supply Board, Bord na Móna, Coillte Teoranta, Irish Water and Ervia, which used to be Bord Gáis - all very crucial State and semi-State assets in the ownership of the people but on which the troika cast its eyes and was making demands concerning the privatisation of some of these designated bodies or aspects of them and two Governments capitulated to those demands for privatisation. Therefore, I oppose the facilitation of the privatisation of crucial, publicly owned assets. That is what is provided for here.
The Ministers concerned are those who essentially have the control and responsibility for those semi-State organisations. The Bill is providing a blueprint by which crucial public assets can be privatised. The Minister will give an instruction to the agency to provide a project management service for the disposal of crucial assets. We are opposed to any further privatisation of assets that instead should be developed, used and invested in to create better infrastructure and tens of thousands of jobs which is the potential within some of these organisations. We are in favour of new ones being created, such as a new housing agency or something related to the local authorities. Is it not instructive that the Government is talking about bringing back from abroad €6.9 billion of the National Pensions Reserve Fund to invest at the same time it is making provision for the privatisation of crucial public assets in terms of State and semi-State bodies?
We are right to be suspicious of this Government in terms of its motivation in this regard. The right wing basis of this Government leads us to object to any facilitation of further privatisation, which is the purpose of my amendment.
Some of us are against the sale of any State assets so obviously we are going to object to anything that facilitates that. Setting aside that point, when we were discussing this issue earlier the Minister of State said that the Minister has the power to do this anyway.
Only if he or she has the legal authority to do so under existing legislation relating to the specific body.
If that authority does not exist in primary legislation, it cannot be done.
Yes but the point is that the authority to do this exists. I wish it did not. The Minister of State might argue that provision has been made for Irish Water to remain a public company. Some of us are dubious about that. We believe the Government has done that under public pressure. We are also dubious as to what extent this will remain the case or for that matter whether privatisation by stealth is already happening in that Irish Water can engage in outsourcing and so on. Setting aside all of those points, the point being made is that if the Minister who has the power to do so asks the NTMA to prepare the nuts and bolts of the sale of a State asset then he or she in making that call - which I wish he or she could not do - should at least be required to come before this House to debate the matter, during which time serious questions about the details of preparations for the project could be raised.
I refer to the proposed sale of the harvesting rights of Coillte. During the year and a half between when the Government was committed to that sell-off and its reversal of that decision, which I welcomed, one of the issues of concern was the value for money that might or might not be achieved in that regard. The figure bandied around in respect of the amount for which the harvesting rights would be sold was €600 million. That is the figure that was referred to by some Ministers. People who are more knowledgeable than I in the area of forestry pointed out that in the context of the cost of timber per acre and so on this amounted to a give-away of the harvesting rights. On foot of being informed of this by people who are more knowledgeable than I in this area I repeatedly tabled parliamentary questions on the matter, including at various stages to the Minister of State, Deputy O'Dowd, but I came up against a blank wall. I was told that the information was commercially sensitive and to release it would jeopardise the negotiations, all of which was nonsense as far as I am concerned. Despite that what we were speaking of was the sale of a valuable State asset I could not get information about it.
This provision would ensure that if a Minister makes this call he or she, prior to the NTMA commencing development of the project, would have to engage in a discussion on that decision in this House. That is a reasonable and fairly minimal requirement to ensure transparency, oversight and so on of a decision regarding the disposal of the people's assets. These are vital assets owned by the people.
I have two questions for the Minister of State. First, under this subsection the Minister can request the agency to do something. As such, he or she would not be issuing a direction or an order in terms of the legal standing of the request. Would we be made aware of such a request being made or would this form part of the normal communication between a Minister and the agency and will it be placed on the public record in any way?
Second, I do not have any difficulty with a Minister requesting the agency to provide project management services per se. However, when it comes to the sale of an asset, be that the designated body or part of it, what role will this House have on the substantive issue of the question of disposal?
Deputies have posed many good questions. As I have addressed this issue earlier, I do not propose to respond to all of the different issues raised. Taking the last point first, whatever powers exist in the legislation establishing the designated body, which powers differ in respect of each agency, are the only powers that currently exist. The Minister cannot do anything which supersedes or negates that legislation, unless new legislation is introduced. For example, if the Minister decided to sell body A and has the power under existing legislation to do so - I must stress this power does not exist in all cases - then he or she would ask the Department officials to set the project in motion. Effectively, this provision enables NewERA to be asked to do that job and to provide its specialist services, knowledge and expertise in relation to the particular area. I could not conceive of any case when such decision would not be debated in the Dáil.
In terms of the sale of the property of Bord Gáis, legislation was brought before the Dáil. In other cases, legislation was not required, for example, the sale of a power station at the ESB. In each case every Member of the Opposition and Government has the opportunity and right to question the line Minister in this House by way of priority question, oral and written questions, questions to the Taoiseach on the Order of Business and the Minister before the appropriate committee. There has to be total accountability in such matters. I cannot imagine any significant sale, if allowed - as I said earlier, all sales are not permitted - not being debated by the Oireachtas in some capacity or other.
While I accept that Deputies' fears are real, nothing new is being provided for. All that is being provided is that the Minister following a decision made under existing legislation can, rather than requesting his or her Department to do something, request NewERA to do it. There is nothing sinister or unusual in what is being provided for. The result will be greater availability of specialist knowledge. Also, this gives due recognition to NewERA being able to provide advice.
Without going over old ground, the Minister of State said that he cannot imagine any circumstances when such issues would not be discussed in this House. I accept that is what the Minister of State genuinely believes. I would never have imagined any circumstances in which we would issue €31 billion of promissory notes without debate in this House but that happened. That is the point I am making. These things do happen and events overtake. There will be different people holding the position which the Minister of State currently holds who will have different priorities and so on and so forth. Legislation is about putting in place protections. My amendment proposes deletion of this section. If, as the Minister of State says, there could be no circumstance in which there would not be a debate in the Houses of the Oireachtas on the proposed sale of a State asset, then I suggest that provision be made in the Bill during its passage through the Seanad to the effect that the proposed disposal of any interest in a State asset would require debate in the Houses of the Oireachtas.
If the Minister of State genuinely believes in what he is saying, why does he believe my point, if only in respect of disposal, is so wrong? For me, it is a compromise to a compromise but I would rather something than nothing. However, I am very much of the view that the measure should be deleted. At a bare minimum, there needs to be a debate on any disposals that occur.
I take the point the Deputy is making, but it would be a matter for the primary legislation setting up the body. The regulations and laws in regard to the body would apply. That is the issue and not this legislation. This legislation only enables the Minister to ask NewERA to advise. If one examined each body to get the facts on all the relevant issues from the line Department, one could then make one's legal proposal and put it before the Dáil or whatever.
How stands the amendment?
With respect, that just does not make sense. The Minister of State is asking us to refer to the legislation that set up the ESB, Bord na Móna, Coillte, EirGrid, Irish Water and every other State body or subsidiary that is designated-----
Every case is different.
Yes, but the Minister of State is actually saying to us that we should go through each and every Act. He knows well that there will be no legislation presented to this House on Bord na Móna, EirGrid or any other body for many months.
There has been legislation. I am trying to be helpful. Legislation on the sale was debated in the House because the law required that there would have to be a full debate when that body was set up. Other bodies were able to sell portions of property without such legislation going through the Oireachtas. In no case was there not a debate.
Of course there were debates but we want to include in legislation a provision that would stipulate that, if the Government decides to sell off an interest in a State body, there would be, at a minimum, a debate in this House. The Minister of State rightly pointed out that if Uisce Éireann were under discussion, there would be a debate anyway by default because of the way it has been established in the legislation.
Exactly.
However, with other State bodies there is no automatic guarantee in this regard. There may or may not be a debate. The Minister of State is suggesting that we return to each Act and do what applies in respect of Uisce Éireann, that is, include a provision stipulating that if the relevant State asset or part thereof is to be sold, there will need to be a debate. I am saying that does not make any sense. First, it would clog up the whole legislative programme if we had to amend eight separate Acts. What we have in front of us is legislation that could, when passed, be the vehicle used to dispose of an interest in any State asset. We should state in this legislation that where a Government intends to sell off a State asset or part thereof, there should be a debate in this House. With regard to Uisce Éireann, there would be a debate anyway but, regarding those bodies that are not subject to an automatic debate at present, there would be a requirement for one if my proposal on disposals were accepted.
Is the Deputy pressing the amendment?
May I make one final contribution?
Standing Orders are Standing Orders. I am trying to make some progress. Is the Deputy pressing the amendment?
I am.
Amendments Nos. 8 to 11, inclusive, are related and will be discussed together.
I move amendment No. 8:
In page 27, line 32, after “for” to insert “public”.
The proposal in these amendments from the Socialist Party concerns the inclusion of the building of social and affordable housing in the strategic projects which will be paid for from taxpayers' funds in the pensions reserve fund being established by the Minister. It is amazing that we should have to propose something that is so obvious to anybody outside the House. The most strategic need in the country is the provision of social and affordable housing.
