I move amendment No. 1:
In page 5, subsection (1), line 18, to delete "section 3" and substitute "section 6".
This is a drafting amendment. It corrects an error whereby the Authority is set up under section 6, not under section 3.
National Disability Authority Bill, 1998: Committee Stage.
Section 1 agreed to.
SECTION 2.
This amendment contains a proposal for a technical amendment. My advice is that the amendment is not appropriate and should not be accepted. Section 3, as cited in the section, and not section 6, as proposed in the amendment, is the section that sets the establishment day by ministerial order.
Amendment, by leave, withdrawn.
Amendments Nos. 2 and 3 are related and may be discussed together.
I move amendment No. 2:
In page 5, subsection (1), lines 25 and 26, to delete "economic, social or cultural life" and substitute "any aspect of society".
Amendments Nos. 2 and 3 refer to the definition section of the Bill which reads, "disability", in relation to a person, means a substantial restriction in the capacity of a person to participate in economic, social or cultural life.". Amendment No. 2 seeks to delete "economic, social or cultural life" and substitute "any aspect of society". In other words, it seeks to broaden the definition. Why is it necessary in the legislation to limit the definition to economic, social and cultural matters in the terms of reference of the National Disability Authority?
Amendment No. 3 seeks to delete the word "impairment" and substitute the word "condition". The reason for this amendment is that the word "impairment" has a negative connotation and the word "condition" does not substantially affect this paragraph. However, it is important to the people it describes.
I hope the two amendments, which are designed to improve the Bill, will be considered in that context. They are designed to take on board the feelings of the disabled community. The legislation must be as positive, inclusive and wideranging as possible.
The definition of "disability" provided for in the Bill is based on the international classification of "impairment", "disability" and "handicap" devised by the World Health Organisation. A definition along these lines was recommended by the Commission on the Status of People with Disabilities when compiling its report "A Strategy for Equality". The proposed amendments stray unacceptably far from the recommendations of the commission and the World Health Organisation. Therefore, I cannot accept the amendments.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendment No. 3 not moved.
Amendments Nos. 4 and 5 are related and may be discussed together. There is an error in amendment No. 4. The word "paragraphs" in the last line should read "paragraph".
Government amendment No. 4:
In page 6, to delete lines 10 to 16 and substitute the following:
"(d) a board or other body established (but not including a company) by or under statute,
(e) a company in which all the shares are held by, or on behalf of, or by directors appointed by, a Minister of the Government, or
(f) a company in which all the shares are held by a board, company or other body referred to in paragraph (d) or (e).".
Amendment No. 4 is a technical amendment which addresses a typographical error in the Bill as presented in the House. The typographical error involved the repetition of paragraph (c) and consequential confusion about the cross-references to paragraphs (d) and (e) in paragraph (f).
Amendment No. 5 is a proposal for a technical amendment. My advice is that an amendment is not desirable. In any event, the amendment, as tabled, is technically incorrect because the collective situation given, 1963 to 1990, is too limited. There are other companies Acts dating from 1908 to 1959 and 1863 to 1907 which would otherwise be excluded. In the circumstances, I cannot accept the amendment.
In my opinion, amendment No. 4 is correct as it stands because "paragraphs" refers to two paragraphs. Of course, it would be more elegantly phrased as "paragraph (d) or paragraph (e)". When there is only one occurrence of the word "paragraph", I have no difficulty with "paragraphs".
Senator Norris said he finds it elegant, but we strive for even greater elegance. In those circumstances, we will press ahead with the amendment.
Amendment agreed to.
Amendment No. 5 not moved.
I move amendment No. 6:
In page 6, subsection (2) between lines 17 and 18, to insert the following new paragraph:
"(a) a reference to an enactment is a reference to that enactment as amended or extended by any other enactment (including this Act),".
Amendment No. 6 seeks to include a standard reference which seems to be omitted from the Bill.
The amendment is technical and I am advised that it is unnecessary. The situation envisaged in it is covered by the interpretation Acts.
Amendment, by leave, withdrawn.
Section 2, as amended, agreed to.
SECTION 3.
I move amendment No. 7:
In page 6, line 27, to delete "National Disability".
This is a drafting amendment in that the term "Authority" is defined in section 2.
This is a technical amendment and my advice is to reject it because "National Disability" is part of the board's title and it is a drafting convention that the board should be cited by its full title in section 3, which provides for its establishment date.
Amendment, by leave, withdrawn.
Section 3 agreed to.
Sections 4 to 7, inclusive, agreed to.
SECTION 8.
Amendments Nos. 10, 13, 13a, 23a are related to amendment No. 8. Amendments Nos. 18 and 19 are consequential on amendment No. 8. Amendments Nos. 20 and 21 are alternatives to amendment No. 19. Amendment No. 22 is consequential on amendment No. 19. Amendments Nos. 8, 10, 13, 13a, 18 to 22, inclusive, and 23a may be discussed together by agreement.
I move amendment No. 8:
In page 7, subsection (2), between lines 15 and 16, to insert the following new paragraphs:
"(a) to monitor the recommendations of the Report of the Commission on the Status of People with Disabilities;
(b) to provide grievance and redress procedures for individuals or groups in accordance with section 14;".
These amendments go to the heart of the legislation and our attempts to improve it in order to give it some teeth. This section refers to the functions of the authority, which are extremely disappointing in that an authority is to be constructed with little or no teeth. The authority will assist the Minister; undertake and collaborate in research projects; advise the Minister; monitor the implementation of standards and codes of practice; liaise with other bodies; prepare codes of practice; recognise the achievement of good standards and quality and prepare strategic plans. These functions are, indeed, worthy, but at what point can the authority deal with grievances of disabled people and represent them?
I read the "Report of the Commission on the Status of People with Disabilities", which was a landmark publication in regard to the rights of people with disabilities. In the context of amendment No. 8 I remind the Minister of the commission's recommendations on the establishment of a National Disability Authority. I wish to point out the difference between the recommendations and the legislation. It states that the National Disability Authority should be established, reporting to the Department of Justice, Equality and Law Reform.
Its key functions would be to monitor compliance with the recommendations of the commission and other relevant EU and international agreements that have been accepted; undertake commissioned research; advise on and develop standards — an important activity; require the creation of appropriate standards; monitor and evaluate programmes, which have been included in the Bill. It would also provide grievance and redress procedures. That is the subject of this amendment and it is the greatest disappointment among people involved in this area.
The authority would publish an annual report, provide a disability support service and organise community action plans at local level. The report stated that membership of the NDA should be balanced and representative, the authority should co-ordinate development of local community action plans and planning groups should include users and carers, etc.
A number of these amendments specifically refer to the recommendations of the commission because for the first time it represents, in a valuable and valid fashion, the views of disabled people and those who work closely with them. This report defines the rights of disabled people and their relationship with us in the wider society, which is not one of charity but of rights.
Amendment No. 8 would provide the first paragraph in the legislation defining the functions of the authority, one of which would be to monitor the recommendations of the report of the commission thereby strengthening the role of the authority considerably and reflecting the report. Ultimately, this and other amendments are designed to give the authority some teeth, which it does not have under the Bill.
The Minister disputed my claim to elegance. I see myself as a parliamentary dentist because we are trying to put some teeth in the legislation. Senator O'Meara's comments about monitoring are extremely important in light of the guidelines of the report, which she quoted. One Government amendment has been tabled which addresses the question of compiling statistical information and this would be appropriate for the planning, delivery and monitoring of programmes and services for people with disabilities. This is a good amendment and I am glad the Government tabled it. I hope this resulted from the informed debate in this House but it is still only deals with monitoring the delivery of services. There are no sanctions.
On Second Stage, we dealt in considerable detail with the question of those groups who are found to be in flagrant violation, through perversity, inaction or whatever, and are falling down on the job or not acting in the interests of those they are supposed to be serving. Under the legislation all the authority is entitled to do is inform them. That leaves an enormous gap and illustrates that it is without teeth. There ought to be a penalty or sanction. I say this from the Independent benches in a non-partisan way. I recall that when this notion was discussed there was significant agreement in principle on the Government side of the House. I am surprised that there has been no attempt by the Government to deal with this, which of course we would have welcomed.
Perhaps the Minister does not particularly like what I have suggested by way of sanction, but it is up to him and his advisers to come up with one. A Bill without any sanction in this area is useless. My amendment states that "unless such programmes or services adhere to standards and codes of practice, as implemented by the National Disability Authority, moneys provided in whole or in part by the Oireachtas shall be withdrawn". That seems reasonable. If they are not doing their duty or are acting in violation of standards and codes of practice laid down by the Oireachtas and the authority, how can they justify spending money provided for them by the Oireachtas? If we do not include a provision such as this, they can spend the money whatever way they wish and there is no sanction.
This amendment is not an amateur effort dreamed up by myself and my colleagues. It is a carefully considered amendment which was drafted in close consultation with professional groups and individuals working in this area. In other words, this is what the professionals recommend. Given that there is such a gross absence in this section of the Bill, it is up to the Minister to provide something with which to fill the gap. These are the most important amendments and I hope it will not be necessary to put them to a vote.
I support the amendment. This is a matter of credibility and responsibility and I appeal to the Minister to give our contributions serious consideration.
When I first read that section of the Bill I thought a line of the section was missing. I am not saying that for fun but as a matter of fact. The Minister's reaction would be no different. Indeed, any Member of the House, glancing through the legislation just to get a flavour of its intent, would think there was something missing from the section. There is a need to continue its logic.
This is the type of provision which makes the Legislature an object of ridicule for the press. I can anticipate the headline in The Star newspaper when a case arises in the next year or two where somebody encounters a problem, checks the legislation for a means of redress, discovers that it consists of informing the offending authority and that authority, on being informed, says “get stuffed”. That does not reflect well on anybody. The Minister and I come from similar backgrounds and I doubt that either of us would like to have to accept that response. The Minister would not be too pleased to have to accept somebody thumbing their nose at him when he informs them that they are failing to comply with their obligations.
A form of redress should be included and the amendment was drafted with that objective in mind. The Minister might believe a different form of redress would be more appropriate but I cannot imagine that he could agree that this gap should be left in the legislation. It is a yawning gap. There is a responsibility on Members, as public representatives and legislators, to plug such a gap. It cannot be right that people who are found to be offending in some way and who are so informed, are allowed to continue in their actions. Something must be done.
I am anxious to hear the Minister's response. I am sure he, no more than other Members, does not wish to be ridiculed about this.
I wish to speak to amendment No. 20, put down by Senator Ridge, which refers to section 14. That section deals with information from certain bodies to the authority. The section is inadequate without the addition of amendment No. 20. It reads:
(1) The Authority may seek information on any matter which concerns the provision of programmes or services for persons with disabilities from a person (including a public body) who has overall responsibility for provision of those programmes or services or a part thereof.
(2) Where—
(a) a programme or service is required by law to be provided to persons with disabilities, or
(b) any other programme or service for persons with disabilities is directly or indirectly funded in whole or in part out of moneys provided by the Oireachtas—
and, in the opinion of the Authority, such programme or service—
(i) is being provided in an inadequate or unsatisfactory manner in any regard, or
(ii) is not being provided to persons with disabilities,
then, the Authority shall inform the person or body providing or failing to provide the programme or service concerned.
We merely wish to add "and stipulate that any such person or body shall immediately take steps to meet the requirements of the Authority". That phrase is necessary to complete the section and I cannot anticipate what arguments the Minister might make to gainsay it. The points made by my colleagues are common sense and seek to give teeth to the authority. The Bill establishes an authority but that body must have what is included in its title — authority.
Arising from the debate on Second Stage and belated representations in this regard, I have decided to broaden the powers of the authority to include a role in the preparation of statistical information for the planning, delivery and monitoring of programmes and services.
Before formally putting amendment No. 10 before the House, I draw the attention of Senators to the last phrase which refers to "people with disabilities". The formula used elsewhere in the Bill is "persons with disabilities" and I seek leave of the House to move orally this amendment to the amendment.
With regard to amendment No. 23a, a number of amendments were tabled by Senators to provide for additional redress procedures where the authority finds that a person or body providing a programme or service to people with disabilities has not adhered to appropriate standards or codes of practice. The amendment will empower the authority in such circumstances to make a recommendation to the Minister for Justice, Equality and Law Reform for the review, reduction or withdrawal of any moneys provided by the Oireachtas in respect of the service concerned.
I propose to include this provision in section 15, which deals with reports and information to the Minister. This is a more appropriate location for it as section 14 is concerned with the interaction between the authority and service providers. The arrangements I am making in this provision are more appropriate to the authority than the punitive action envisaged in Opposition amendments, involving an order of the Circuit Court, and will be more effective in regulating compliance.
I wish to acknowledge — I experienced the frustration of not having this acknowledged many times when I was in Opposition — that I have borrowed directly from Senator Norris' amendment in devising the amendment I have put before the House. Senator Norris has described himself in this context as a dentist so while I am not accepting his crown, I am certainly accepting his filling.
Amendments Nos. 8, 13 and 13a seek to broaden the remit of the authority in different ways. Amendment No. 8 provides for the inclusion of monitoring the recommendations of the report of the Commission on the Status of People with Disabilities among the functions of the authority. The Government is committed to implementing progress in regard to disability. It is committed to the adoption of the plan of action for implementing the commission's recommendations. This plan is expected to be finalised by the end of February and will be submitted to Government. These matters will evolve, therefore, in the short to medium term.
I envisage no long-term role for the National Disability Authority in this connection. I could not make specific provision for such a time delimited activity in the Bill. It is not appropriate to detail the basis for current Government policy in primary legislation intended to establish a new authority with a broad ranging remit. I cannot, therefore, accept the amendment.
Amendment No. 13 provides for the inclusion of community action plans among the functions of the authority. The report of the establishment group makes clear that the role of the National Disabilities Authority will be best served if the functions assigned to it are clearly those of a dedicated authority with responsibility for policy and the development and monitoring of standards of service provision.
In making its recommendations, the establishment group diverged on a number of points, including the National Disability Authority's role in relation to the development of community action plans, from the original recommendations made by the Commission on the Status of People with Disabilities. The establishment group's thinking, which I fully accept, is explained at some length in its report. The development of community action plans has, for these reasons, not been provided for in section 8(2) of the Bill. They will involve the wide range of agencies, many of which will be providing services for people with disabilities. As such they will be subject to monitoring by the National Disabilities Authority. Any such interplay would inevitably jeopardise the monitoring and evaluation role of the authority and I cannot, therefore, accept this amendment.
Amendment No. 13a proposes a further elaboration of functions of the authority as enumerated in section 8(2). I am satisfied that the additional provision proposed for insertion at paragraph (i) is not necessary. This is because the substance of the provision is already catered for under paragraph (a) in relation to the promotion of policy relating to disability, and under paragraph (e) in relation to liaison with bodies involved in the provision of services to people with disabilities. I do not, therefore, consider that the amendment proposed would in any way add to the functions of the authority as provided for, and I do not proposed to accept it.
Amendments Nos. 8(b) and 18 to 22, inclusive, seek to broaden the functions of the authority to include grievance procedures. It is my view that the assignment of such activities to the National Disability Authority would run counter to its core functions. The role envisaged for the authority by the establishment group is essentially proactive. It has a strong co-ordinating and developmental role, a research function, a standards body, a codes of practice role and support and liaison remit. These functions can best be discharged through close co-operation, support and leadership. I am convinced that an enforcement role fits badly with the central remit of the authority as well as overlapping with redress functions available elsewhere. For these and related reasons, I cannot accept the amendments which would involve the authority in redress and grievance actions.
I apologise to the Minister. I mean no criticism of the staff of the House, but we have just received the additional amendments. I was reading from the yellow section and I completely accept that the Minister has met the substance of amendment No. 21 which I tabled. I welcome this. The Minister has done exactly what we wanted and the Bill is immensely strengthened. It shows how co-operation between the critical intelligences in this House and the Minister and his advisers can provide better legislation. I welcome the Minister's announcement of the Government amendment and I am happy to yield my crown to him.
That was not my interpretation of the Government amendment. The Minister's amendment is much weaker than the Senator's. The Minister's amendment does not refer to standards and codes of practice. Indeed, reading Government amendment 23a, it is so vague it could mean anything:
Without prejudice to the generality of subsection (3), the Authority may, in making a report to which section 8(2)(d) relates, make recommendations for the review, reduction or withdrawal of any moneys provided by the Oireachtas for any programme or service where it is of the opinion that it would be appropriate in the circumstances to make such a recommendation.
That is weak. The authority may make a recommendation to the Minister, that is all. In making a recommendation there is no reference to standards or codes of practice. My interpretation of Senator Norris' amendment was the he was trying to create a situation where the authority could recommend the withdrawal of money where a service is not up to scratch. The Minister's amendment does not go that far. On my first reading of it, my interpretation was that it went some way to meet our concerns about section 15, but on second reading it is clear that it does not.
On the Minister's remarks about amendments Nos. 8, 10, 13 and 18 to 22 inclusive, the majority of which I tabled, it is clear that we are attempting to include a number of issues, particularly those set out in the Report of the Commission on the Status of People with Disabilities, in order that this Bill would have substance and meaning. While I take the Minister's point that the legislation is not designed to create a proactive authority, he should accept that it should have some authority. Judging from his remarks about his own amendment, the Minister appears to recognise that might be necessary, otherwise what do we have? An authority which advises, monitors, recommends, liaises, prepares and recognises strategic plans. That is fine but what happens then? Where will people with disabilities be in relation to this authority if the service is not up to scratch and the public money is not being properly spent? All that can happen is the authority may make a recommendation. Even if the amendment read that the authority "shall" make a recommendation, it would be considerably stronger.
On amendment No. 18, which specifically seeks to insert the words "following receipt of a complaint or on its own initiative", here, once again, we try to give the authority some strength. It would give the authority the opportunity to pursue individual complaints about the inadequacy of service. This point is raised repeatedly in the report of the commission. I will not go through the report fully, it is sufficient to read the first paragraph of the commission's overview. Legislation has been brought in since the report was published but it is worth reiterating the views expressed therein:
People with disabilities are the neglected citizens of Ireland. On the eve of the 21st century, many of them suffer intolerable conditions because of outdated social and economic policies and unthinking public attitudes. Changes have begun to come about, influenced by international recognition that disability is a social rather than a medical issue, but many of those changes have been piecemeal. Public attitudes towards disability are still based on charity rather than on rights, and the odds are stacked against people with disabilities at almost every turn. Whether their status is looked at in terms of economics, information, education, mobility, or housing they are seen to be treated as second-class citizens.
It seems that in establishing this Authority in the manner in which it is drafted in this legislation, we are losing a valuable opportunity to create an authority which could reflect the desires of the disabled community and those who work with them in this State, to raise their status from second to first class citizenship. This is the desire behind our amendments. In particular I refer to amendment No. 22. This amendment seeks to insert the following:
The Circuit Court may on the application of the Authority, and after hearing the respondent, make such order as is necessary to ensure compliance with an order of the Authority under subsection (2).
In other words, the authority could go to the Circuit Court seeking an order, it would have power, it would have teeth. The purpose of this amendment is to ensure that where the authority comes across inadequate service provision, it can require it to be remedied. In the legislation as currently drafted the authority only may recommend to the Minister. There is nowhere it can go to redress the anger and dissatisfaction of people who come up against inadequate service provision.
I compliment the Minister for broadly accepting amendment No. 21. I am pleased to note that Senators Norris and O'Toole are reasonably happy that amendment No. 23a creates an economic sanction.
Yes.
It is more than adequate under the circumstances. We all broadly agree with the thrust and direction of the Bill. In this regard, amendment No. 23a comes a long way to meeting the fears and reservations of the Senators who spoke on Second Stage.
On Second Stage, I queried the position regarding sanctions. The decision of the Government and the Minister to broadly take on board the amendment tabled by Senator Norris, almost verbatim, is a indication that the Minster is willing to listen and that he has listened and taken action. This economic sanction is reasonable and is more than adequate. Some of the sanctions being suggested would not be appropriate to the authority it is proposed to establish. It is has many functions and is an innovative approach to people with disabilities.
I accept that for many years those suffering with disabilities, physical or otherwise, were dealt a poor hand and given a raw deal. However in the past 20 years, major strides have been made. On Second Stage I mentioned that I recalled reading the Labour Party manifesto for the 1992 election and their proposals for revolutionising the law regarding those with disabilities. They were a full five years in Government and little, if anything, happened. Now we have a Government and a Minster prepared to take action and the Minister deserves credit for it. It is very easy to pontificate from the Opposition benches. However five years lapsed during which relatively little was done.
Like Senator Norris, I had not seen the Government amendment when I spoke previously. This morning when we were considering the wording of Senator Norris's amendment I thought it covered the functions we were trying to achieve. The Minister listened to the argument and responded in a very fair way. There are amendments from Senators O'Meara and Norris and the Minister. On first reading it appears that the Government amendment does not go as far as that of Senator Norris but it goes substantially further than what was sought in the Labour Party amendment. That is my reading of it.
Also, on further reflection, I would say there is a strength in the Government amendment which I find very attractive for two reasons. First, it allows action to take place merely on the basis of the authority forming an opinion. This is achieved far more easily than that which Senator Norris and I were trying to achieve. Second, I am happy with the latter part of the amendment which requires, allows, facilitates and provides for the Minister to take action. I prefer it that way because it is the way the political system should work. Also, if we have learned nothing else over the past two or three years in both Houses, we have learned that every decision is challenged. Anything which has any kind of a domestic remedy built into it, such as this one where we would be giving quasi-legal powers to an authority, will, without doubt, be challenged if the reason is big enough. It will be challenged through judicial review, the legislation, the High Court and so many systems and structures that it would get itself into paralysis.
I am attracted by the idea of the authority forming an opinion — which is all it is required to do under the amendment — and bringing that opinion to the attention of the Minister. If the Minister does not take action on it there is a clear target for the rest of us to focus on. The Minister of the day is given strength on the basis that he or she is taking action on something being brought to his or her attention by an independent authority. There are many fail safe mechanisms built into this. It is a more effective way of dealing with it. The amendment which Senator Norris and I put forward was an modh díreach to get straight to the point. However, an modh díreach can often hit a brick wall and in this case the brick wall could be a legal challenge. This is a safer and sounder way of dealing with it in legal terms. I am very happy with the provision.
If there is a flaw it is that the Minister may decide not to take action. However in the amendment that Senator Norris and I put forward, the authority might decide not to take action. It is easier to deal with a Minister than an authority. A Minister is accountable to the elected public representatives and can be asked to appear before the Houses to give a reason. However an authority is two steps removed and we would be effectively paralysed from taking action.
The Minister has listened carefully and I appreciate his response. Senator Norris and I feel this has done what we set out to do, which in the words of those who contacted us was to give "sufficient legislative power to impose sanctions". I recognise that power in this amendment is not totally vested in the authority but it is initiated by the authority and brought to conclusion by the Minister. That is the way it should be and I am happy with that.
If the opinion is not acted on it will be leaked. There is nothing surer.
Amendment No. 20 tabled by Senator Ridge is similar to Senator Norris's amendment No. 21. The Minister referred to it as going into the area of "grievance collecting" or something like that. Perhaps he could repeat the phrase. By the widest stretch of the imagination, I do not know how he could describe it as such. He said that if these amendments were accepted they would put the authority into the area of grievance collecting. The phrase is not that important.
I agree with Senator O'Meara. Words are all important, especially when it comes to matters of law and we are dealing with a matter of law here. I would like to remind those Senators who are taking a softer line that we are also dealing with a matter of public funds. What would the Comptroller and Auditor General say if he was asked for advice on this? He would say the wording should be "shall" and not "may". "May" means nothing. It means "may" or "may not". The easy way is usually "may not". When the wording is "shall" it is a command. The word here should be "shall" in relation to the spending of public money which creates the service to those with disabilities. That is all we are seeking. The amendment would be fine if it read "the Authority shall" rather than "the Authority may". It is as simple as that.
I am embarrassed at coming late to this debate. I was unable to contribute last week due to illness.
I support this Bill. It is very important that Ministers listen to what people say and try to accommodate them to arrive at the best result. The Minister has done so here, though Senator O'Toole's points about the primacy of the Oireachtas must also be taken on board. The Minister is accountable to the Houses of the Oireachtas, and that is where the checks and balances are. We must look to the supremacy of the Oireachtas there. The Minister has made a sincere and successful effort to accommodate the views expressed to him, and the Government amendment should be supported.
I thank Senators for their observations on these important provisions. Amendments Nos. 19 and 20 are obvious and praiseworthy, though a little simplistic.
The Bill is simplistic.
They are simplistic in the context in which they are intended to take effect. The approach would have some merit where the remedy sought is straightforward and easy to achieve, but the process of informing the authority of its obligations as provided for in the Bill is just as likely to secure similar results.
Senator O'Meara stated that she saw no reference in amendment No. 23a to standards and codes of practice. It is true that it may not be in the vernacular in the body of the amendment, but there is cross reference to section 8(ii)(d).
I said that.
That relates to standards and codes of practice. I accept that Senator O'Meara accepts this.
I strongly agree with Senator O'Toole in accepting the broad thrust of Senator Norris's amendment and in accepting that the authority itself may put forward an opinion. This is stronger than what Senator Norris has in the body of his amendment, which stipulated that unless the programmes and services adhered to standards and codes of practice as implemented by the National Disability Authority, moneys provided in whole or in part by the Oireachtas would be withdrawn.
There is very little doubt that this could result in a myriad of court cases, and I accept what Senator O'Toole says in this respect. The issue would be whether, as a definitive fact, the programme or service did or did not adhere to the standards and codes of practice. It will be accepted that this would be a matter of opinion, whereas giving the authority the power to express an opinion is stronger for the reason that an opinion can be right or wrong. The fact that it does express an opinion to the Oireachtas regarding this matter strengthens the Bill considerably, because Senator Norris has hit on a core issue in his amendment: the Exchequer provision supports public service programmes, for people with disabilities or anyone else.
That is clearly a matter of considerable importance. If a statutory body such as the National Disability Authority states that, in its opinion, money should be withdrawn, I doubt, to use Senator O'Toole's words, if the Minister of the day would be slow to ignore that opinion. The simple reason is that the Minister for Justice, Equality and Law Reform would then become the target, and God knows the Minister, as I know too well, has sufficient arrows flying in his direction to look for more.
The Minister usually deserves them.
I accept that I was no bad shot, though that is not the issue we are addressing.
Nobody deserves them more than the Minister. That kind of whinging about arrows——
The Minister without interruption.
We are addressing the issue of the teeth the authority will have in ensuring compliance with the standards promulgated. In general terms I am satisfied we have moved forward so that the authority has teeth to ensure that standards and services are maintained or improved.
In that context, if it should transpire during further debate here or in the Dáil that I conclude there is still a serious difficulty in relation to enforcement I would have an open mind. I do not want an authority to sit there in some kind of beauty contest. That is of no relevance to those concerned and of no satisfaction to me. I want an authority that can do something innovative and radical. I fully accept Senators saying that this cannot be achieved by an authority which does not have the capacity to ensure enforcement, and that is why I accept the broad thrust of Senator Norris's amendment, which I consider very good.
The legislation also provides, in section 15, that the authority may report to the Minister on any matter relating to its functions, and that circumstances, where a service provider either cannot or will not remedy limitations notified to it under section 14, seem obvious situations for the authority to exercise these powers. The authority has two options under section 15. It may report on the gamut of its activities in its annual report and, in this context, it would be expected that the authority would single out particular issues for special recommendation and consideration. That annual report will, of course, be laid before the Oireachtas. Section 15 also provides that the authority may make such other reports to the Minister as and when it sees fit. I see the authority exercising this reporting function in circumstances where the information procedure under section 14 has failed to bear fruit, especially where information procedures relate to complex or cost increasing proposals. Such action by the authority would place the issue into the only arena where it can be resolved either by reprioritising activities or by the provision of additional Exchequer funding. The direct reporting relationship at ministerial level, which the National Disability Authority will enjoy by statute, is poorly understood or appreciated.
The approach provided for by the Bill will facilitate the development of services for people with disabilities far more quickly and completely than the approach envisaged by the amendments which opt either for litigation or the mandatory withdrawal of Exchequer funding. The question of Exchequer funding would be the subject matter of an opinion expressed by the authority itself. Means of redress already exist through the Office of the Ombudsman where a public body fails to provide a programme of service to a citizen. I remind Senator Connor that "procedures" was the term I used, not "grievance, fetching, collecting or blood-letting".
In the past, the Office of the Ombudsman has shown itself to be an effective reference point for dealing with issues of concern to people with disabilities. This was highlighted in the report of the authority's establishment group. It stated that the Office of the Ombudsman had responded positively, strongly supporting the importance of accessibility of complaints systems and stating that special consideration be given to meeting this need for people with disabilities. The Office of the Ombudsman has, to date, investigated a number of cases directly involving the provision of services to people with disabilities.
It is important we are fair to the Office of the Ombudsman. In his annual report last year, the Ombudsman dealt with issues of direct concern specifically to people with disabilities, namely, basic income entitlement and eligibility for the free travel scheme. I have no doubt that in future reports, the Ombudsman will also address other issues of critical or central importance to people with disabilities.
A new infrastructure for equality would provide a redress of first instance in cases of discrimination through the new office of the director of equality investigations. The new office will deal with discrimination by employers and providers of goods, facilities and services in the public and private sectors. The remit of the new office would extend both to the employment equality legislation due to be published next year and equal status legislation in the year 2000. Senators will be aware that discrimination on the grounds of disability is one of nine grounds of discrimination which will be specifically outlawed under the Employment Equality Act and the proposed equal status legislation.
I trust that my comments on this matter alleviate Senators' concerns. I welcome the fact that Senators Norris, O'Toole, O'Donovan and Keogh are satisfied we have moved in the right direction in regard to providing teeth to the authority. Although Senators Connor and O'Meara may not fully embrace the amendment, I believe they will accept it represents a significant improvement. If it should transpire that a cogent argument can be made to the effect that this legislation is not sufficiently effective, I would be prepared to consider the matter further. However, at this stage, I believe the amendment is adequate.
I accept the Minister has moved to embrace concerns expressed on this side of the House. I have listened carefully to his comments. He stated that should he hear a sufficiently cogent argument he would be open to further amending the section. It behoves us to advance such an argument.
I find it difficult to accept that the expression of an opinion is, in effect, a sanction of any kind. How could the expression of an opinion be a sanction? The Minister stated that the expression of an opinion by the authority is a very strong move. That may be true in theory. The Health and Safety Authority which is charged with monitoring the implementation of a range of legislation in regard to safety on building sites, farms, workplaces and so on, regularly expresses its opinions in regard to the role of employers. That has not resulted in any increase in the level of fines imposed on errant employers or those found guilty of breaching the law in regard to health and safety. Is the expression of an opinion by the Health and Safety Authority any different to the expression of an opinion by the National Disability Authority or any other authority established by legislation?
The Minister will forgive my skepticism. It lies with us to provide a more cogent argument to the Minister in this regard. I accept his amendment has met many of the concerns expressed here and is a significant improvement. However, I do not believe it is significant enough. If the Minister states that the expression of an opinion to a Minister is a sanction, I accept that. However, I am not aware of any other case in which that applies. Legislation on other aspects of the workings and responsibilities of authorities and public bodies is framed in such a manner as to clearly describe their roles and functions and the sanctions which will apply. The Minister might elaborate on the manner in which the expression of an opinion could be regarded as a sanction. Having listened to him, it might be more appropriate to table a further amendment on Report Stage.
I agree the Minister has come some way towards addressing our concerns. I appeal to his instinct as a solicitor; he is aware that in matters of law, the term "may" means that one is not obliged to follow a certain course of action. We are simply seeking to strengthen the wording by changing "may" to "shall". This relates to the very important question of public funding of services to people with disability where clear evidence was available that a service provider was not providing a service where public funds were being used. I believe the National Disability Authority — if, in its wisdom, it formed such an opinion — should be bound to inform the Minister of such. The Minister should not come into the House portraying himself as some kind of latter day St. Sebastian shot through with slings, arrows and lances. It is our duty to put these points to him; they are not the slings and arrows of outrageous fortune but of just desserts.
In my view, the sanction is not imposed through the expression of an opinion, rather it is what occurs subsequent to an opinion being expressed. The opinion will put the train in motion. When the opinion is expressed and put to the Minister of the day, the spotlight will be on him or her to take action. The action of threatening to withdraw funds from groups or organisations almost totally dependent on Exchequer funding is as strong a sanction as one could accept.
Senator Connor made that point that "may" allows the possibility of "may not", but by the same token "shall" allows the possibility of "shall not". We could embark on a semantic exercise and end up going around in circles. The Senator must acknowledge that since the Second Stage the Minister has tabled about ten amendments. On this most important issue of sanction, he has proposed an amendment almost entirely incorporating what is in Senator Norris's amendment No. 21. In this regard the Minister has gone a long way to meet the demands of Senators. Senator Connor might be gracious enough to accept that.
It is not enough.
Perhaps not to the point that Senator Connor would like——
We want him to do it right.
The Government's amendment is to be welcomed.
May I speak again?
Yes. The debate has had a fair run and I intend to encourage——
I intend to disappoint the Chair as I have not yet spoken on amendment No. 13a.
Acting Chairman
Of course the Senator may contribute.
I am in favour of this amendment to deal with sanctions. I have a certain experience in this area and the question of imposing sanctions and separating the sanctioning authority from the authority which determines or investigates is important. It is a matter which I have been promoting on behalf of Members in the Committee on Members' Interests. On many occasions recently I have seen the imposition of sanctions failing and being found to be legally unsound because the body which investigated a case is the same as that which imposed the sanction. In this matter it is important that there will be a clear distance between the body which comes to a conclusion that something incorrect has happened and the party which imposes the sanction.
I would be opposed utterly to replacing "may" with "shall". I accept Senator Connor's arguments about the difference in the meaning of the words — he is right, they are completely different. However, we cannot set up an authority and then tell it how to do its business. If we set up an authority we give it a legislative basis to do something and it must do that. If it does not, we have made a mistake. It takes from the value of and the respect for an authority if we decide that, it having come to a conclusion, we want to tell it what to do. As legislators we give a body the authority to take the next step. On this occasion the next step is for the authority to decide to refer an opinion to the Minister to the effect that it has come to a conclusion about a person or body on which it is reporting and it may then recommend a review, reduction or withdrawal of money.
To provide that the authority "shall" do one thing or another does not add any authority to the authority, so to speak. It would amount to us telling the authority how to do its business. I do not like that approach. It is not a good model. I believe in giving people the right to exercise power. As I have often said in the House, because a person has a right to do something does not mean it is right to do it. In this case, just because the authority may have the power to do something will not always mean it is correct to exercise that power.
Although I cannot come up with any at the moment, there may be reasons which make Senator Connor's point attractive. At least "shall" would mean that we know it will be done in a particular way. However, I always worry about trying to anticipate everything that might happen because no two cases or investigations are the same. I believe in giving space for people to take and implement decisions. For that reason I am attracted by the idea that the sanctioning body is the Minister and the body which comes to a conclusion about how the rules were not kept is one which is distanced from the Minister. Therefore, the Minister would act on its advice and evidence.
I listened carefully to the Minister's response to amendment No. 13a. I do not disagree particularly with the points he made. I seek to establish what is meant by some elements of section 8. Section 8 (2) (c) refers to programmes and services. Will the Minister assure me that reference includes such issues as employment and training? The terms "programmes" and "services" are vague and are not defined in section 2.
My amendment No. 13a goes to the heart of how this Bill will work. In his replies the Minister referred to this working in conjunction, in co-ordination or in parallel with or with some linkage to the new equality authority and he talked about how that would operate. I never trust the parliamentary draftspersons, particularly those in the Department of Justice, Equality and Law Reform. Every time I take something for granted I find it to be wrong. Section 8 (2) (e) contains a reference to "liaise with other bodies". I note that in section 2 there is reference to a public body. My amendment attempts to ensure that public bodies would be included. I am not hung up on the wording of my amendment. I wish to ensure that there will be an effective link between the disability authority and the equality authority. I am heartened by what the Minister said in response to a previous question about the need for such a linkage.
What I seek to achieve could be done with a minor change. Amendment No. 13a seeks to give the authority the power to liaise with State employment, equality and training authorities to monitor and promote policies affecting people with disabilities. As an alternative, in section 8(2)(e) which states "to liaise with other bodies" we could insert "including public bodies" and that would address my concerns. That creates the link the Minister is talking about — it uses the term "public bodies" which is already defined in section 2 and meets all those needs. By doing that it would create a strong authority.
I think everyone would acknowledge we do not want to make the National Disability Authority a court or a star chamber, and in deference to Senator Connor's remarks about bows, arrows, shots, cannonballs, etc., we do not want a torture chamber either.
I made that remark in reference to the Minister's self pity.
However, in taking on board some of the amendments I think we would be in danger of doing precisely that. If we accept Senator Norris's amendment or even its broad thrust we have reached the core issue, which is Exchequer funding. It will be acknowledged by experienced politicians that there are few more effective mechanisms for achieving change or maintaining momentum than the threat or possibility of losing such funding; most people would agree with that observation for the simple reason that it is true. In that respect, the authority is given the power, where appropriate, to express its opinion on whether Exchequer funding should be reviewed, reduced or withdrawn. It must be obvious that this provision has been tailored, as regards Senator Norris's amendment, to ensure the provision is in accordance with the Constitution, because it would not be in order for anyone other than the Oireachtas to decide Exchequer funding should be withdrawn, reduced or reviewed, save the Government, which is part of the Oireachtas.
With regard to Senator O'Toole's observations and taking his last point first, section 8(2)(e), where it mentions "bodies", does not read "private bodies", in those circumstances he would accept it must of necessity include public bodies. In addition, section 14 will be of assistance in this context. I assure the Senator that section 8(2)(c) includes placement and training for employment. It cannot deal with employment itself in that context because that could not be described as a service within the meaning of the paragraph. I hope those assurances are of assistance.
Without replaying the match I am of the strong view that the core issue is one of funding. I believe the power given to the authority to express its opinion, where it feels it would be appropriate in the circumstances, is desirable. It achieves the objective which, to be fair, everyone wants to achieve.
Amendment put and declared lost.
Acting Chairman
Amendments Nos. 11 and 12 are cognate to amendment No. 9 and all may be discussed together by agreement.
I move amendment No. 9:
In page 7, subsection (2)(a), lines 16 and 17, to delete "Minister" and substitute "Government".
The reason for this substitution is that the authority should be in the position to advise any Minister, not just the Minister for Justice, Equality and Law Reform, on issues arising from the legislation since service provision to people with disabilities relates to other Ministers also. The insertion of the word "Government" here and elsewhere in the section under the other amendments would broaden the provision of advice which the authority could give.
Senator O'Toole said earlier, in respect of bodies such as the National Disability Authority or Governments, that if the onus is put on one person, it will be more effective — in this case, response should be directly to the Minister for Justice, Equality and Law Reform of the day rather than to the Government. This should be left with the Minister, because when the muck hits the fan one person will have responsibility for cleaning it up. There is provision for laying reports before the Government but we might lose impetus by referring this matter to the Government rather than the Minister. We should leave the provision as it is and let the buck stop with the Minister, as it eventually will anyway.
I agree with that point; the Minister must have responsibility, the buck stops with him. It is ironic — I hate to dredge up the past but sometimes I cannot help but do so — that this line was not taken in the equality legislation produced by the former Minister for Equality and Law Reform.
At least we had a Department of Equality and Law Reform then, now we do not.
We have such a Department and an effective one under the aegis of this Minister. There were difficulties with legislation previously put forward and the fact that the Department stood alone did not make any difference in that regard.
It made a lot of difference.
The Senator should ask the disabled groups about that.
I have a strong opinion on these issues, having monitored them closely during the last Government and I have every confidence in this Minister and the Minister of State, who has been praised highly for her work on disability. I do not accept that point.
Senator Keogh is alone in that view.
If Senator Connor had put forward the amendment to delete "Minister" I would probably have taken it personally. Since it was the Labour Party, with which I have close ties, who tabled the amendment——
No offence was meant.
——I must take it as read that no offence was intended.
Section 8 lays down the primary functions of the National Disability Authority which include the requirement that the authority should report to me, as Minister for Justice, Equality and Law Reform on matters relating to the co-ordination and development of policy relating to disabilities of persons and standards of programmes and services, and on the implementation of standards and codes of practice. Amendments Nos. 9, 11 and 12 seek to provide instead that the authority should report to the Government rather than to the Minister under whose aegis the authority will operate.
The Government has placed functional responsibility for disability issues under the aegis of my Department. A clear indication of the priority accorded to these issues by the Government is the appointment of the Minister of State at my Department, Deputy Mary Wallace, to special responsibility for disability issues.
The National Disability Authority Bill, 1998, has been prepared and developed by myself, the Minister of State, Deputy Mary Wallace, and the interim authority. The authority, when it is established on a statutory basis, will come within the remit of my Department. The natural and appropriate locus for the reporting relationship of the authority, even if I say so myself, is to the Minister and the Department of Justice, Equality and Law Reform. For these reasons — I was going to say "I regret"— I cannot accept the amendment.
Amendment, by leave, withdrawn.
Government amendment No. 10:
In page 7, subsection (2)(b), line 20, after "disability" to insert "and to assist in the development of statistical information appropriate for the planning, delivery and monitoring of programmes and services for people with disabilities".
Acting Chairman
Amendment No. 10 has already been discussed with amendment No. 8 but it is being amended to delete the word "people" and substitute "persons".
Government amendment No. 1 to Government amendment No. 10:
To delete "people" and substitute "persons".
Government amendment No. 1 to Government amendment No. 10 agreed to.
Amendment, as amended, agreed to.
Amendments Nos. 11 to 13, inclusive, not moved.
I move amendment No. 13a:
In page 7, subsection (2), between lines 39 and 40, to insert the following new paragraph:
(i) to liaise with state employment, equality and training authorities to monitor and promote policies relating to persons with disabilities.
On the basis that the Minister has given me an absolute assurance that the word "bodies" includes public bodies in this case, and also his other clarifications, I intend to withdraw the amendment. I thank him for the clarification.
Amendment, by leave, withdrawn.
Section 8, as amended, agreed to.
Section 9 agreed to.
SECTION 10.
Acting Chairman
Amendment No. 16 is related to amendment No. 14 and amendment No. 17 is consequential. Amendments Nos. 14, 16 and 17 may be discussed together by agreement.
I move amendment No. 14:
In page 8, subsection (1), lines 13 and 14, to delete "may, and shall if requested by the Minister" and substitute "shall".
We could spend more time dancing on the head of the "may"versus“shall” pin. However, I wish to refer to section 10, which relates to codes of practice. The Bill states:
The Authority may, and shall if requested by the Minister, prepare for submission to the Minister draft codes of practice for the purpose of achieving the aim of good standards and quality in the provision of programmes and services provided or to be provided to persons with disabilities.
This is obviously one of the core sections of the Bill as it encapsulates very clearly one of its primary aims and ambitions and, to a large extent, sets out the whole spirit of the legislation.
I will not rehash the previous arguments about "may" and "shall", but it appears, from reading the Bill, that it would have been far more valuable to give the authority a very clear mandate here, in other words, to state "the authority shall prepare for submission draft codes of practice". The section states quite clearly the authority "shall if requested by the Minister" prepare draft codes of practice, but it would have been much clearer to state simply "the authority shall prepare" those codes of practice. That would give the authority a much clearer and more effective legislative function.
This is a very good example of where the word "shall" should replace the word "may". I agree with the amendment because, if the authority is required to do anything, it should be required to draft codes of practice. It is in all our interests to make it a sine qua non that, if it is to monitor models of good practice, it should, in the first place, draft such codes of practice for the purpose of achieving good standards. Otherwise, we will leave ourselves open in two ways; first, they may not have proper guidelines, reference points or rules on which to base their decisions or opinions; and, second, it may make it difficult for the persons and bodies they are monitoring to determine how they should approach matters and do their business.
Amendment No. 14 strengthens the section. Amendment No. 16 is probably not quite as clear and I am not sure if it is necessary. I do not understand why the Minister would not accept amendment No. 17, but I am sure he will explain it to us.
It seems quite clear, however, that it would be in the interests of the Minister, the House and everyone else if part of the function and a continuing role of the authority were the creation of draft codes of practice. This would be accepted in normal industrial relations nowadays. If the Minister took action against someone because they disagreed with the opinion which had been formed by the authority and if they could point to the fact that the authority had not provided codes of practice, it would weaken the Minister's position.
We expect these people to do a certain amount of work. From the point of view of any of the professionals attaching to the authority, it would be better if they could have an input into ensuring there are clear codes of practice. Perhaps we are missing something, but I definitely feel the word "may" should be changed to "shall".
I agree with the two previous speakers. I have already said enough about the difference between "shall" and "may" and I do not want to rehash that argument. However, it is becoming clear to us that the Minister simply does not want this Bill or the National Disability Authority to have teeth. I wonder what is the conflict. If it were to be an authority, the legislation setting out its terms of reference would be set out in authoritative language. It is as simple as that. The Minister might explain to us why he will not change the term "may" to "shall", as requested in this series of amendments.
The converse of this argument was very adequately put forward earlier by Senator O'Toole in this regard.
That was in a different context.
The Senator may think so but it seems to me that it was not.
This authority is an independent statutory body. Section 10 states "The Authority may, and shall if requested by the Minister, prepare for submission to the Minister. ..". Inserting the word "shall" would impose limits on what the authority could and could not do and would take from its independence. If the authority does not do the proper thing the Minister can compel action.
The House has often argued about the meaning of the words "may" or "may not". When one asked in school "An bhfuil cead agam dul amach go dtí an leithreas?" the teacher could have replied that one "may" or "may not" go or one "shall" or "shall not". Both answers would be more or less equal in terms of meaning.
Given that we were taught to speak in Latin, I am sure the Minister would not accept that argument.
Senator O'Toole would be best placed to provide the modern equivalent of Senator O'Donovan's point.
It is a while since I attended school.
I have reviewed these amendments carefully. However, despite their apparent precision they could lead to confusion as to the responsibilities of the authority as well as removing entirely from the scope of the Bill what I would regard as a useful ministerial function. Section 10 deals with the development of codes of practice and is, if I may use the term, permissive in its approach.
This approach has been adopted because of the nature of the obligation placed on the authority, which is general and couched in broad terms. The intention is that the authority should not be restricted in identifying subject matters suitable for the development of codes of practice, neither should it be committed by law to promulgate codes of practice over the general and comprehensive terms of its remit in the area.
However, there is one exception to this permissive approach. It is mandatory for the authority to prepare such codes of practice when requested to do so. This arrangement will ensure that where the authority fails to identify and prepare a code of practice and a need arises which becomes known to the Minister, he or she is in a position to ensure the need is addressed.
The arrangements in section 20 follows the approach in previous legislation, such as the Industrial Relations Act, 1990, and the Employment Equality Act, 1998. I would be slow to depart from a tried, tested and successful formula.
I ask the Minister to take another look at these amendments. It does not do them justice to treat them as a group. It is important that amendment No. 14 is accepted. Amendments Nos. 16 and 17 are different in intent.
Amendment No. 17 seeks to amend section 10(3) to read:
After a code of practice has been submitted under subsection (1), the Minister shall by order declare that the draft.
I do not agree with the word "shall" here because the Minister should have the right to exercise judgment. I, therefore, do not support the amendment.
Amendment No. 16 seeks to amend section 10(2) to read:
Before submitting a draft code of practice under subsection (1) to the Minister, the Authority shall consult with such other Ministers of the Government or any other person or body as the Authority considers appropriate.
The amendment proposes the deletion of the subsequent words "or as the Minister may direct". However, it is good that the Minister should have the authority to direct the authority to consult with people, bodies or Departments. This amendment is, therefore, restrictive.
I accept the Minister has a good argument to make regarding amendments Nos. 16 and 17. However, the intent of amendment No. 14 is different. It seeks to amend section 10(1) to read: "The Authority shall prepare for submission to the Minister. .". This is the beginning of the process; it shall then consult and the Minister shall then declare.
Section 8(2)(d) provides that a principal function of the authority is to "monitor the implementation of standards and codes of practice. .". However, codes of practice do not come into operation unless the authority decides to compile them and if an authority decided not to proceed on this basis a central provision of the Bill would not be adhered to.
The use of the word "shall", as provided in amendment No. 14, addresses this possible difficulty. The amendment proposes that, in agreeing this provision, it is the Oireachtas, not the Minister, that directs that the authority "shall" prepare the draft codes of practice. That is a positive way to proceed. It should be clearly seen that the authority has the duty to compile codes of practice. It should then consult on them before finalising them and the Minister should then accept or reject them.
The legislation should unequivocally determine that it is part of the role of the authority — it is not something over which it should have discretion — to draft codes of practice for the purpose of achieving the aims of good standards and quality in the provision of the programmes. It can never have been the intention of either the Minister or the Government that this should be within the discretion of an authority. I ask the Minister to accept amendment No. 14, which is different from amendments Nos. 16 and 17 in terms of what it seeks to do.
I have already outlined that the intention is that the authority should not be restricted in identifying subject matter suitable for the development of codes of practice, nor do I believe that it should be committed by law to promulgate codes of practice over the general and comprehensive terms of its remit in the area.
Section 9(1) already provides that the authority "shall prepare and submit to the Minister, for approval by the Minister with or without amendment, a strategic plan for the ensuing three year period". That would refer to codes of practice.
Senator O'Toole and others have argued that under section 10, there should be a statutory imperative on the authority to prepare for submission to the Minister draft codes of practice. This would appear to imply that at the first attempt the authority should put before the Minister draft codes of practice which would become the only draft codes to be thus submitted.
In the alternative, the argument can be cogently made that the fact it is discretionary means there is far more elasticity in the legislation in so far as the authority is concerned, in other words, it is provided with a degree of flexibility to which it is entitled. I do not believe that the independence of the authority in terms of its determination process should be interfered with to the extent that it should become a statutory imperative for the authority to do what the Minister wants. There is a safety valve in that there may be occasions where the Minister would request the authority to prepare a submission but I would not envisage that this would become the norm. It would be desirable for the authority to have, and be seen to have, a degree of independence and flexibility in its operations. I am disposed to maintaining the status quo. Under section 9 the strategic plan would include codes of practice.
It does not. That is factually incorrect. I have carefully read the legislation and it does not include codes of practice. It states: "A strategic plan shall comprise the key objectives, outputs and related strategies, including the use of resources, of the Authority". That is all that is in it. The Minister also talks about putting a time limit on it. The strategic plan has to be done within three years and this does not include codes of practice. I suspect that codes of practice are not included in the strategic plan for the precise reason that he implied, that it would require them to do it on a timescale quicker than perhaps they would be entitled to do it. It is also incorrect for the Minister to say that section 10 implies that they have to do it immediately or only once. It does not. Section 10(4) says: "The Minister may, after consultation with the Authority, by order revoke or amend an approved code of practice". The term "an approved code of practice" implies there will be other codes of practice, in other words, there will not be just one code of practice; there will also be different draft codes. The fact that they are drafted means that they are subject to change.
Everything the Minister has said confirms that the term should be "shall" and that they should put in their own time. It is not in the strategic plan, nor should it be because that suggests they can set it for each three year period. Inserting this in the strategic plan would result in a hamfisted operation because it would appear that they put their draft code in and they cannot change it until the next strategic plan is produced in three years' time. Codes of practice are not included in the strategic plan. Whoever said they were is giving inaccurate advice. It is not there, it is quite rightly not there and it was never intended to be there. It is intended to be something that the authority should do when they feel it is appropriate. Without doubt they should have to do it and they should have no discretion about it. I ask the Minister to recognise and accept that the term "may" should be changed to "shall". We would expect by legislative imperative that the authority would be required to draw up codes of practice.
Question, "That the words proposed to be deleted stand," put and declared carried.
Amendment declared lost.
I move amendment No. 15:
In page 8, subsection (2), line 19, to delete "ministers" and substitute "Ministers".
This is a very straightforward amendment. In the absence of Senator Norris and not having consulted him, I am debating whether I should make a statement that this is what I would consider to be a typographical error. The word "ministers" should be deleted and the word "Ministers" be inserted.
This is a very interesting proposition. Amendment No. 15 makes a proposal for a grammatical change to the Bill. My advice is that a lower case "m" is appropriate as "ministers" is a common noun and that is as it should be in a republic.
A small "m" is used for a reason. In an Act where "Ministers" is used it refers to the Minister for Finance and the Minister of another Department. It also refers to the Ministers who are included in the Act, and they often use a capital "M". Usage of the small "m" means that it can be a Minister, Minister of State, Minister of the Cabinet, etc., it just means any particular Minister. That is what is intended. That is a regularly used drafting device.
In recent times the draftspersons conventions are changing. The term "the Government" has been referred to in the singular. Two years ago the Government was referred to in the plural. In the new version of Office 1998 which gives corrections as one goes along it draw one's attention and gives one a slap on the wrist for using a capital incorrectly. On this occasion a small "m" is correct.
Having listened to this debate anyone would pause for thought before saying "mmm" ever again.
Amendment, by leave, withdrawn.
I move amendment No. 16:
In page 8, subsection (2), line 21, to delete "or as the Minister may direct".
Question, "That the words proposed to be deleted stand," put and declared carried.
Amendment declared lost.
I move amendment No. 17:
In page 8, subsection (3), line 23, to delete "may" and substitute "shall".
Question, "That the word proposed to be deleted stand," put and declared carried.
Amendment declared lost.
Section 10 agreed to.
Sections 11 to 13, inclusive, agreed to.
SECTION 14.
I move amendment No. 18:
In page 9, subsection (2), line 25, after "and", to insert "following receipt of a complaint or on its own initiative,".
Amendment put and declared lost.
I move amendment No. 19:
In page 9, subsection (2), line 30, after "concerned" to insert "and by order require such person or body to remedy its default, and the person or body shall, subject to any legal requirement to the contrary, comply with the requirement".
Amendment put and declared lost.
I move amendment No. 20:
In page 9, line 30 after "concerned" to insert "and stipulate that any such person or body shall immediately take steps to meet the requirements of the Authority".
Amendment put and declared lost.
Amendment 21 not moved.
I move amendment No. 22:
In page 9, between lines 30 and 31, to insert the following new subsection:
"(3) The Circuit Court may on the application of the Authority, and after hearing the respondent, make such order as is necessary to ensure compliance with an order of the Authority under subsection (2)."
Amendment put and declared lost.
Section 14 agreed to.
SECTION 15.
I move amendment No. 23:
In page 9, subsection (3), line 40, after "fit" to insert "and the Minister shall cause such report to be laid before each House of the Oireachtas".
This amendment refers to section 15, reports and information to the Minister and the publication of reports. The amendment seeks to insert the words "and the Minister shall cause such report to be laid before each House of the Oireachtas". The effect of the amendment would be to ensure that non-annual reports are published. It would be useful to have this contained in the legislation. It would also be a useful power for the authority. In an era of freedom of information, wider publication of reports and research, it would be in keeping with the spirit of the times and the legislation to give the authority the flexibility it needs. I do not think the amendment would have a detrimental effect on the legislation. I hope the Minister will accept the amendment in the spirit in which it is meant.
The National Disability Authority is required to make an annual report to the Minister for Justice, Equality and Law Reform on the performance of its functions and activities during the preceding year and such reports shall be laid before both Houses of the Oireachtas. The National Disability Authority is also empowered, under subsection (3), to make such other reports to the Minister for Justice, Equality and Law Reform with respect to its functions as it sees fit.
I am satisfied it would not be appropriate to require that any additional or special reports, which the National Disability Authority may make, should be subject to laying before the Houses of the Oireachtas. The authority must, within the provisions of subsection (3), be free to report to the Minister in respect of any issues which it feels would benefit from such reporting. Such reports may arise as a consequence of an intervention by the authority, under section 14, with a service provider. In many cases, aspects of the report may be confidential. It would be incumbent on the Minister to take appropriate action on receipt of such reports. The power of the authority to report in this way to the Minister and, in turn, the Minister's ability to proceed with matters raised by the authority in a manner considered to be most beneficial, is crucial to the establishment of an effective mechanism enabling the authority to channel its concerns directly to the Minister and, through him or her, to all Departments and service providers.
Where the National Disability Authority feels it is appropriate, it will be open to it to refer in its annual report to matters it has raised in special reports to the Minister. In this way, issues appropriate to public debate may be brought into the public arena.
For the reasons set out, I regret that acceptance of this amendment would tend to diminish the effectiveness of the authority.
In that context will the National Disability Authority be listed in the schedule of the Freedom of Information Act? In other words, will the preparation of reports by the Authority be available to members of the public under the Freedom of Information Act? If the Authority, like most public bodies, comes under the ambit of that Act, surely the amendment would be acceptable given that the Act would go much further than the amendment suggests.
I hope Senator O'Meara will accept that it would not be appropriate for the report to become the subject matter of public debate prior to its completion. However, I believe that on completion it would be subject to the Freedom of Information Act and in those circumstances it would become available.
I am not suggesting reports be published prior to their being made available to the Minister. However, once they are made available to him they should be subject to the provisions of the Freedom of Information Act. If this is the case the object of this amendment would be met.
There will be a deliberative process between the Authority and the Minister relating to the publication of the report. The Senator will appreciate that it would be appropriate and logical that what she suggests would then follow.
Amendment put and declared lost.
Government amendment No. 23a:
In page 9, between lines 40 and 41, to insert the following new subsection:
"(4) Without prejudice to the generality of subsection (3), the Authority may, in making a report to which section 8(2)(d) relates, make recommendations for the review, reduction or withdrawal of any moneys provided by the Oireachtas for any programme or service where it is of the opinion that it would be appropriate in the circumstances to make such a recommendation".
Amendment put.
Will the Senators who are claiming a division please rise?
Senators Connor, Gallagher and O'Meara rose.
Amendment declared carried.
The names of the Senators dissenting will be recorded in the journal of the proceedings of the Seanad.
Section 15, as amended, put and declared carried.
Sections 16 to 19, inclusive, agreed to.
SECTION 20.
Amendment No. 27 is related to amendment No. 24 and both may be discussed together by agreement.
I move amendment No. 24:
In page 11, subsection (1)(b), line 31, to delete "19" and substitute "18".
These amendments relate to the appointment of worker-directors to the staff of the authority. Section 20(4)(b) refers to "one member of the staff of the Authority who shall be elected by secret ballot of the staff of the Authority. .". This is the usual method for the election of worker directors, the appointment of whom is common in the semi-State sector. Amendment No. 24 seeks to delete "19" in section 21(b) and substitute "18" while amendment No. 27 seeks to substitute the phrase "two members" for "one member".
I am not aware of any board which includes worker directors that restricts their number to one. The Minister regularly refers to common practice in other legislation but it is common practice to have two worker directors on a board.
A single worker director could find himself or herself alone in representing the views and interests of staff and in discussing policy issues. Worker directors can and do contribute to the range of responsibilities of the board, authority or committee on which they sit. Why does the legislation provide for only one worker director? Given that the principle of having a worker director is contained in the legislation, will the Minister not accept that the appointment of two such directors would be more effective in enhancing that principle?
I support Senator O'Meara's amendments. The section states that the authority "shall consist of a chairperson and 20 ordinary members who shall be appointed by the Minister and who shall, subject to the other provisions of this section, hold and vacate office as the Minister may determine". The Minister, therefore, has control of the 20 ordinary members of the authority. The staff of the authority will have the right to elect, by secret ballot, one member of the authority. We are seeking the election of an extra member of the authority by the same process. I cannot understand why the Minister should not accept this proposal.
I suspect that the Minister never intended that the National Disability Authority should be a proper authority with the degree of independence it would require to be effective. Obviously, there is a subplot involved because in every discussion we have had on Committee Stage the recurring theme is that the Minister wishes to restrict the actions and authority of this so-called authority. The staff of the authority will be isolated if the number of worker directors is confined to one. He or she will have little influence on the authority. Senator O'Meara is correct to point out that throughout the semi-State sector, where worker directors are now the norm, the number of such directors is much larger.
I sincerely hope the Minister will accept the amendments and agree to the appointment of two worker directors.
The Minister appears to be relaxed and acquiescent so I am sure he will be positive in his response. The House should recall what happened during the formation of the last two Governments and the view of the two minor parties about having only one seat at the Cabinet table, in effect, one worker director. Both Democratic Left and the Progressive Democrats did not consider having a single representative at Cabinet the best way to do business. That led to the creation of the famous half seat at Cabinet.
I respectfully request the understanding support of the Progressive Democrats for this amendment. They have been through this situation and have considered the arguments for and against a single representative at Cabinet. Perhaps they would rehearse now the arguments they made when they were forming the Government. They are the same reasons the workers in the National Disability Authority should have two representatives rather than one on the authority. It is a telling argument and I look forward to the support of the Progressive Democrats. They should at least do us the honour of agreeing with our arguments even if they are obliged to vote against them.
When the current Taoiseach was Minister for Labour, he brought before the House two Bills dealing with worker representation, including worker representation at sub-board level. On a number of recent occasions there have been ministerial orders to increase the number of State companies which should have worker directors. That simply represents the Government's view.
The trade union movement is currently trying to convince union members of the benefits of the concept of partnership, a concept which was mentioned many times during the Budget Statement and in numerous speeches by the Taoiseach. That partnership has led to inclusion whereby workers are asked to take their brains to work, not just for the task they must complete, and also to take a strategic approach to their work. For that reason, I ask the Minister to increase the number of worker directors on the Authority to two. As far as I am aware, there is no example of there being just one worker director in a semi-State body.
What about the Irish Horse Racing Authority?
The only person who gave votes to horses was Jonathan Swift in the third book of "Gulliver's Travels" where the Houyhnhnms were running the country——
What about Caligula?
Caligula made his horse a senator.
There have been many Senators who were not as good as horses. Indeed, many Senators have been gelded. One Senator gave a famous description to the other House of how horses do their business.
Senators should speak to the amendment.
We are discussing the need for worker representation in order to reflect the approach to partnership. The appointment of at least two worker directors is normal practice in the semi-State sector. The nearest relevant example is the National Rehabilitation Board. It has 15 members of whom four are worker directors. The authority, on the other hand, comprises 20 members of whom only one will be a worker's representative. That is not a good balance.
There are strong reasons for the appointment of worker directors. It shows a sense of trust and confidence in the staff and in their approach and commitment. Their view and vision might often be relied on by the other members of the board because they work in this area every day. It gives a good balance and would add to the other balancing measures of the additional amendments introduced today. I ask the Minister to concede this amendment and to increase the number of staff members elected to the board from one to two.
I support in principle the arguments made on this side of the House. There are also two strong practical arguments in favour of not limiting worker representation to one person. The staff will have intimate acquaintance from their day to day work with the needs of people with disabilities, and while they will be represented in their own right on the board, staff in this area have an important role to play and should be represented to the maximum possible extent.
The Minister's colleague, the Minister for Public Enterprise, Deputy O'Rourke, showed great openness to this argument in the legislation which restructured Bord na Móna. Even though it was drafted to minimise or exclude worker representatives from the subdivisions of the main company, she accepted the arguments made during the passage of the legislation and restored a favourable balance for worker representatives.
The other practical argument is the situation which could arise if there was only one worker representative and that person was indisposed through illness or other reasons and was unable to attend meetings. The staff would be disenfranchised in the deliberations of that meeting.
I support the arguments my colleagues have made in principle but there are also practical arguments and I hope the Minister will respond favourably.
Section 20(1)(b) and 20(4) provide for the appointment of an elected worker-director to membership of the authority. Amendments Nos. 24 and 27 seek to increase the number of worker-directors of the authority from one to two employees. The National Disability Authority will be a small expert body with an initial staff complement of 35 employees.
It has to be pointed out that the National Rehabilitation Board has five times that number of staff. As a consequence of the fact that there will be only 35 employees of the National Disability Authority, there is no ground for making provision for the appointment of more than one member of staff to the board. I cannot accept the amendments for this reason.
The concept of worker participation in the boards of State bodies has evolved in recent decades and reflects the current partnership approach to social and economic issues. A particular approach is evident in the large corporate bodies such as Aer Lingus, An Post and Telecom Éireann. These bodies have substantial numbers of employees, often involving diverse groups which may have different concerns. The boards of these organisations are generally management boards with major responsibility for overseeing the functioning of a large commercial organisation. The Department of Enterprise, Trade and Employment, which has responsibility for policy and legislation in this area, has encouraged the development of worker participation in this context. The Department also recognised the differing needs of non-commercial State organisations in regard to staff representation. For this reason it advocates that a case by case approach is taken when making legislative provision for staff representation on the boards of new organisations.
In a number of recent cases, legislation has been enacted to establish new State bodies without reference to staff representation on the board. This was the case with Enterprise Ireland, which was established last year with a staff of 100. It was also the case with the National Standards Authority of Ireland. In both cases, however, one staff representative has been appointed to each board on an administrative basis.
Similarly the National Social Services Board, which is to be involved in the new information providing service, has no statutory provision for staff representation on its board. It does, however, have one staff member on its board. Nonetheless, I am convinced it is appropriate to make provision for a staff representative in the legislation establishing the National Disability Authority and that is what I propose to do. As a small expert body, I envisage a very close working relationship between the board and the staff which will be facilitated by the inclusion of this representative.
I have indicated why I do not intend to accept the amendments. I have to insist that the issue of staff representation on the board of the National Disability Authority must be evaluated on the basis of the approach which is most appropriate for that body. In short, I believe that my view is reasonable. It is necessary to ensure a close working relationship, and for the benefit of the authority itself, that there would be a staff representative, but there will be only 35 employees and in those circumstances, one representative could adequately express the views of the employees concerned.
To return to the Latin theme, and the issue of Caligula having made his horse a senator, I want to make it clear that I am not suggesting that there is any Senator in this House who bears even the remotest similarity to the equine species. Having said that, it is necessary of me to quote an old mentor, the late Professor Murphy, who used to like saying "inclusio unius, exclusio alterius”, which means that if you include one, you exclude another.
I am disappointed with the Minister's response. In the event of a single worker-director on a board such as this not being available, where does the principle of representation apply? Will the Minister clarify if the possibility of the appointment of a substitute exists in the legislation in light of the fact that the member will be elected by secret ballot? If it does not, it strengthens the argument for two worker-directors because it is unfair to provide for one. Even if a person is representing 35 people, it is still an onerous responsibility and occasions will arise when that person cannot be there.
Again the Minister labours the point that the staff complement is small. With 20 members, the board is quite large. There is room for a second worker director to represent the staff. That is the way we should be moving in this modern age giving a greater say to the staff of any concern. State bodies have given the lead in that they have introduced the concept of worker-directors.
Since the Minister holds the authority for appointment to the board, perhaps he might describe the criteria which he will apply. One hopes that political considerations will not come into it. What advice will he feel obliged to take in relation to the various bodies which provide care and assistance to people with disabilities, either on a voluntary or a statutory basis?
I have been trying to resist the temptation to rise to Senator O'Toole's bait but I will have to do so. An analogy between an authority board and the Cabinet is a spurious analogy for one reason: the proceedings of the Cabinet are subject to confidentiality; the proceedings of the board of an authority board are not. The confidentiality aspect is the very good reason to have a second person present at Cabinet.
Senator Connor seems to be labouring under confusion as to the difference between State boards and authorities. It is perfectly legitimate for the workers to be fully represented in the case of a State board which runs a large public utility and it is desirable.
What is wrong with them being represented on a State authority?
As I recall the Irish Racing Authority does not have a staff representative.
That is a bad thing.
Teagasc may have one, I do not think it has two. There are plenty of precedents for this legislation. Senator Connor has now successfully put me off track.
This is to do with the difference between boards which control large public utilities where there is a large staff input and the activity impinges directly on the staff. That is not so evident in the case of an authority. It is particularly not evident in the case of an authority in which service provision is separated from the authority. If we examine the functions of the authority we see they are all to do with acting as a central national body to assist the Minister, undertaking research, advising the Minister and monitoring the implementation of standards and codes. Of course the professional people involved in the sector have a competence and should have a view. It is interesting that the only groups specified in the legislation are the workers — one of whom shall be elected — and one officer of the Minister.
I hope the Minister will specify——
I was under the impression that Senator Connor would have the opportunity to rebut this argument on Committee Stage. That is how Committee Stage works.
A Chathaoirligh, Senator Dardis was referring his remarks to me and, of course, I addressed him back through you.
In future I shall try to address myself solely to the Chair and to ignore Senator Connor. This will be difficult but I will make an effort.
Impossible.
I return to the point that service delivery is excluded from the scope of the Bill and that is the area where worker representation is most desirable. It would be suitable to have two people there. I am sure the Minister could appoint one. I do not see any difficulty in that. That is one option under the Bill.
The functions of the authority in section 8 are different from those related to service delivery and that is the area where the professionals are most needed. It would be desirable to have two but it is not a matter of principle.
To dismiss Senator Dardis's very weak argument that the reason this is different from Cabinet is that Cabinet is subject to confidentiality, any board of any description can make rules about confidentiality. Every one of the 3,200 primary school boards of management has written a confidentiality clause into its regulations. That has its own impact. Section 29 states:
(1) Save as otherwise provided by law, a person shall not, without the consent of the Authority, disclose any information obtained by him or her while performing, or as a result of having performed, duties as a member of the Authority, a member of staff of the Authority (including the Chief Executive), a member of an advisory committee or a consultant or adviser to the Authority.
(2) A person who contravenes subsection (1) shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,500.
That is from the Bill. There is a confidentiality law governing it. If that is the only difference between it and Cabinet, the argument goes. They are subject to precisely the same rule except that one is covered by the Constitution and the other is covered by the law of the land which is subject to the Constitution. Let us drop that argument.
The matter that bothered me most when I was listening to the Minster talking about him being a target is something I have seen happen many times since I came in here. I listened carefully to the Minister's comments. He is a bright guy and knows his stuff. He has not put forward one argument against having a second worker-director. He told me what happens in the Enterprise Authority, the National Standards Authority and the NSSB. I suspect somebody other than the Minister has made this decision. Is the Minister convinced of this? If he is, he has not articulated it. There is absolutely no reason for this. This is what gives the Department of Justice, Equality and Law Reform the reputation it has for being closed, exclusive, opaque, not involving people and not participating in the common views of the community.
There is a commitment to partnership; there is a commitment to showing trust and confidence in the workforce and this is a very good opportunity for the Minister to take that on board. I will regret if he does not. There would be no gain to him and I do not know what the Department could gain by not expanding this. The numbers do not add up. I could understand if a certain number was required to be on the staff and we had to wait until there were 35 before we could have the second person. The closest example I could give is the National Rehabilitation Board where there are four out of 15 members.
I prophesy that there will be serious difficulties with the operation of this board within five or six years. As soon as the inevitable tensions develop between the staff of the boards and the elected or appointed authority, they will not be sorted out.
Section 20 states that one member of staff shall be elected by secret ballot of the staff of the Authority. Section 28 states "the members of staff, including the Chief Executive" thus implying the chief executive is a member of staff. Section 25 states the "Chief Executive shall not be a member of the Authority". There is a straight conflict there. In section 20, as a member of staff, he is entitled to be elected. In section 28, he is included as a member of staff and in section 25 he is the only member of the staff who is excluded by name from becoming a member of the authority. I know the Minister will have four weak arguments against accepting that but I do not care. Some day this will appear before a court and these arguments will be made and this provision will fall.
The arrangement under section 25 whereby the chief executive "may" attend meetings of the authority is a bad one. In this situation there may be a problem with some aspect of the workings of the staff — this happens in the best run places — and the chief executive can be excluded from attending the board while a worker-director elected to the board will try to represent three or four different points of view on his or her own. This is a bad arrangement. There is a deficiency in those elements of it. There is a separate relationship there that will not work. The Bill may be forced through the House tonight but that does not help.
Going back to the fundamental issue, the Minister's job will not be made any easier by restricting this to one person. I ask him to accept this amendment and extend the "one member" to "two members" for all good reasons.
There seems to be a fundamental misunderstanding among the Opposition about what exactly is the National Disability Authority. We are not talking about a company. We are talking about an authority. I am sorry to bring up amendment No. 26a but it is relevant, even if it is slightly out of order. It proposes that the Minister shall have regard to the desirability that the majority of the authority will be persons with disabilities, their representatives, families or carers, in other words, that these will bring a certain type of expertise and are representative of people who are to be assisted by that authority. It is not like a company; it is a totally different body. The explanatory memorandum states that the NDA will not be a service providing agency but will function as an expert body. It is desirable that there be a communication vehicle, though I disagree with the term "worker-director" as that gives a totally incorrect emphasis. The point is that it will function as an expert body; it is the authority and the members thereof that are functioning. They have the expertise. It is not like the board of a company where one refers to the employees and their representatives. The person elected to the National Disability Authority by the staff members should also be bringing a degree of expertise that is pertinent to the work of the authority.
This is totally different; we are not comparing like with like. The arguments being made are fallacious because they do not recognise the role of the authority. There is a fundamental misunderstanding here. The matter does not relate to the representation of workers but to a body of expertise. That is the fundamental point that must be realised.
I do not want to go into the entire argument again, for obvious reasons. Senator Keogh is correct. Subsection (3) sets out the concerns the Minister must take into account when deciding who shall and shall not be members of the authority. The Senator is also correct in stating that this is an expert body whose role clearly parallels organisations such as Enterprise Ireland, which I have mentioned, the National Social Services Board or the National Standards Authority. The arrangement for the inclusion of one worker-director is in line with existing practices in those organisations. In addition, I have not made an administrative arrangement. I have made it a statutory imperative that there will be a representative of the staff. As I have said, it is one staff member out of approximately 35, which is not bad.
The fact that I am making it a statutory provision means I am going beyond the practice in similar organisations, and I feel justified in doing so because I strongly believe that the staff should have a representative.
Senator O'Meara asked if there would be a substitute. The member of the authority will be elected by the staff by secret ballot, and in as much as Senator O'Meara is irreplaceable until the next election, so too will be the member of the authority, and that is how it should be. We cannot have substitutes in elections. Would that it were so; many former Senators and Deputies might turn up every now and then. It does not work like that.
Regarding Senator O'Toole's point, this could not be more inclusive. The Department of Justice, Equality and Law Reform is doing its level best to be inclusive, open and transparent with this and other legislation. We are doing our best to defrost the window and not to be opaque. If Senator O'Toole is not satisfied with our performance, there is very little more I can do other than to assure him that we are not trying to sweep anything under the carpet. We are trying to be as clear and open as we can.
I do not agree with Senator O'Toole's point about the chief executive, but that does not mean he might not be right. I will seek the opinion of the Attorney General on the Senator's proposition and then discuss it with him again. I realise Senator O'Toole brought the matter forward to be helpful. At least one of his other points regarding the Department might have been mischievous, but we cannot all be perfect all the time.
I am happy that this matter will be checked out by the Attorney General. However, people should have some idea how this will work. The board is made up of a diverse group of people which is by its nature intended to be inclusive of the people who will receive this service. There is no argument with this point, but there is an argument with the next step.
Let us look at the list of things this board has been given to do — it is to advise Ministers, undertake commissions, act as a central co-ordinating body, liaise with other bodies, implement standards and codes of practice and prepare codes of practice and strategic plans. Who will do that? That work will be devolved from the board to its staff, and for that reason the staff are underrepresented. If I were chief executive of an operation where I had trust and confidence in the staff, and 21 people were coming in every month who had experience in facets of the area in which I was involved, I would want a staff member who would create a cohesive force to draw together the strength of the diverse group of people on the authority. That is an effective and efficient way to do business. I deal with a lay board each month, and people with the best will in the world, no matter how supportive, will always look at issues from a selective perspective. That is what they are selected for, and someone else must draw that together. The staff members will be doing the actual work, and they will have a huge practical input, apart from their professional expertise. They will be discharging the responsibilities determined by decisions of the authority.
That is a far more efficient way of doing business. I have made my case as strongly as I can and can make it no stronger. A mistake is being made here, and I appeal to the Minister to reconsider. He should take a more open approach, and he should concede that we would be better off having a second staff member on the board.
Amendment put and declared lost.
I move amendment No. 25:
In page 11, subsection (2)(a), line 33, after "Authority" to insert "(not being a person engaged in or employed by a person or body engaged in the provision of services to persons with disabilities)".
This amendment relates to the appointment of a chairperson. The legislation provides for the Minister to appoint a chairperson from time to time as the occasion requires and that chairperson would be a member of the authority. This amendment seeks to ensure that the chairperson appointed by the Minister from the authority would not be a service provider, in that we feel it reasonable that the employee of a service provider being chairperson would not be appropriate. This amendment is designed to ensure that would not happen. I look forward to the Minister's response.
Amendment No. 25 seeks to amend the Bill to stipulate that the chairperson of the authority shall not be a person engaged in the provision of services to people with disabilities, either as an employee or a member of the board of such a body. These criteria would leave a situation in which up to one-third of the membership of the interim National Disability Authority would be excluded from the possibility of serving as chairperson of the authority. Senator O'Meara, being a member of the Labour Party, will be accustomed to the frustration which could occur as a result of being excluded on such grounds. The remainder of the authority's membership comprises either people with disabilities who are not engaged in service provision or the parents or carers of people with disabilities. The chairperson of the interim authority could have come from either of these groups or from among the service providers. In the event, Senators will be aware the chairperson is an employee of Rehab, a service provider.
I am aware some people may have been disappointed that the chairperson of the interim board is a service provider. Irrespective of who was appointed, somebody would have been disappointed. I assure Senators that my selection of the chairperson from among the members of the interim board was made with a view to the very challenging programme which falls to be delivered by the incumbent of that position. I am satisfied the chairperson possesses all the experience, expertise, drive and commitment required to make a success of the authority. I am pleased she accepted my invitation to take up the appointment; the task is a very onerous one to which she is eminently suited, having a tremendous record in this area. The proposed amendment would conflict directly with the arrangements which have been put in place for the interim authority and I am not disposed to accept it.
Amendment, by leave, withdrawn.
Amendment No. 26a is an alternative to amendment No. 26 and they may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 26:
In page 11, to delete lines 46 to 50 and in page 12, to delete lines 1 to 3 and substitute the following new subsection:
"(3) 15 members shall be appointed by the Minister from persons nominated to the Minister by organisations representative of persons with disabilities, their representatives, families or carers; and the remaining 3 appointed members shall be chosen by the Minister from persons appearing to the Minister to have relevant knowledge and experience.".
The paragraph in section 23 which relates to the appointment of members of the authority appears to be considerably broad and vague in its drafting, leaving a huge amount of discretion to the Minister. This amendment seeks to change that and narrow the amount of discretion allowed to the Minister. The amendment substitutes the current paragraph to ensure that, under the legislation, 15 members of the authority shall be appointed by the Minister from persons nominated by organisations representative of persons with disabilities, the remaining three members to be chosen by the Minister from persons appearing to have relevant knowledge and experience. That is a much tighter drafting than the current paragraph.
It is not unknown for organisations representative of people in an area covered by legislation to have nominating authority or power. A number of organisations nominate people to a considerable number of boards; ICTU and IBEC would be prime examples. The amendment is in recognition and acceptance of the existence of bodies which are not only entitled but well suited and placed to nominate suitable, experienced and representative people to serve on boards and bodies where their views could be expressed and heard. It would seem entirely appropriate in the context of this legislation that organisations representative of people with disabilities should be specifically given nominating power under the legislation. The very clear opinion was expressed in the report of the Commission on People With Disabilities that a strong sense of exclusion was experienced not only among people with disabilities themselves but also among those who represent them and work on their behalf. If the Minister were to accept this amendment, he would send out a strong signal that it is his desire and intention to ensure such a sense of exclusion is ended. I appeal to him to take this amendment on board and give organisations involved in this area nominating power to the authority.
I wish to point out a correction. Amendment No. 26 will be discussed on its own. Amendment No. 26a is an alternative and is related to amendment No. 28 with which it will be discussed.
The Minister's proposal in this section is desirable in its general intent, namely, that a majority of the authority would comprise persons with disability and people with knowledge and experience in this area. That is very worthwhile. However, he spoils matters by reserving the sole authority to make the appointments. I am sure he would wish to be above reproach in this matter and ensure there could not be any suggestion that these were jobs for the boys.
The authority will be a very large one with 20 board members. The Minister is to have the authority to appoint the chairperson and to make a further appointment from another Ministry which he deems to be relevant. Other nominations are to be made from staff. Effectively, the Minister has the authority to make two nominations in addition to the chairperson, with one other person to be chosen from the staff. Apart from those four people, the other 17 would effectively be appointed directly by the Minister. The Minister does not have to observe any guidelines other than that the appointees should be from the area of disability.
I expect the Minister would welcome the drawing of some parameters. It is usual for nominating bodies to make nominations which are subsequently accepted by a Minister on foot of which appointments are made. In that sense, a proper balance would be achieved. I expected the Minister to welcome an amendment such as this which is not intended to tie his hands, rather to ensure a proper balance in terms of nominating bodies. It would also ensure that the process would be seen to be removed from the Minister while, at the same time, allowing the Minister overall responsibility and authority to make the nominations.
I have carried out some research on the composition of the board. Having seen the names of the nominees, I am satisfied that representation across the board is well balanced. More than 60 per cent of the board members are people with disabilities, among them wheelchair users, people with sensory disabilities and three members of the Irish Council for People with Disabilities. With respect to the argument being made, the composition of the board as it stands is excellent and the Minister must be complimented on setting it up.
Section 20 (3) sets down several criteria which will be observed in ministerial appointments to the authority. Specific requirements are made with regard to the desirability that a majority of the authority would be persons with a disability, their representatives, families or carers. Specific provision is also made that members appointed would have knowledge or experience, directly or indirectly, of matters pertaining to disability or of another subject which would be of assistance to the authority.
Amendment No. 26 proposes to replace the existing subsection (3) with a new subsection to provide that 15 members of the authority shall be appointed by the Minister from persons nominated by organisations representative of persons with disabilities, their families or carers, the remaining three to be chosen by the Minister having regard to their relevant knowledge and experience.
I am not disposed to accept this amendment because I am satisfied that subsection (3) as it stands ensures that each successive Minister for Justice, Equality and Law Reform will have sufficient flexibility in appointing a balanced and representative authority.
Great care and consideration were taken in selecting the members of the interim authority, who were appointed last July. As Senator O'Donovan said, over 65 per cent of the present board members are representative of people with disabilities, their families and carers and several members are representatives of service providing agencies. The social partners and relevant Departments have also been included.
In appointing the members of the authority I received many nominations from individuals actively involved in the disability sector. I examined each nomination carefully and found them a source of great assistance in selecting such a broadly representative board. It is standard practice for interested parties to make such nominations and for consideration to be given to nominations received. This will be the case without recourse to legislative provision. I would not advocate the inclusion of such a provision in the
Bill and I do not believe it would add any value to the criteria already provided for in section 20.
Amendment, by leave, withdrawn.
Acting Chairman
Amendments Nos. 26a and 28 are related and may be discussed together.
Government amendment No. 26a:
In page 11, to delete lines 46 to 50, and in page 12, to delete lines 1 to 3, and substitute the following:
"(3) In appointing persons to be members of the Authority, the Minister shall have regard to——
(a) the desirability that a majority of the Authority would be persons with disabilities, their representatives, families or carers and, in the case of each member of the Authority, that he or she would have knowledge or experience, either directly or indirectly, of matters pertaining to disability or of any other subject which in the opinion of the Minister would be of assistance to the Authority in the performance of its functions, and
(b) subject to paragraph (a) the desirability that not less than 8 of the members are women and not less than 8 of the members are men.".
The Senators' proposed amendment makes mandatory provision that the members of the authority should be appointed with due regard to an appropriate gender balance. I support the Senators in their amendment with regard to the principle of balance representation for men and women on State boards. However, I propose to make an amendment in a slightly different format to ensure that primacy is given to the desirability that a majority of the authority is composed of people with disabilities, their representatives, families or carers and that they have knowledge or experience of matters pertaining to disability or of assistance to the authority.
I am happy to say that the members of the interim authority satisfy the intention of this provision in that 45 per cent are female and 55 per cent are male.
With regard to the language used in the amendment, will the Minister clarify what is meant by "the Minister shall have regard to the desirability" that not less than eight of the members are women and not less than eight are men? He points out that our amendment would make it mandatory and there is a reason for that. I accept that in practice this happens in many cases but we are looking to the possibility of a future authority sliding out from its responsibility in this regard. What is the Minister's view on that? We discussed earlier the power of an opinion. What is his view on the power of desirability?
As Minister with responsibility for equality it is my policy to ensure we have equality, whether in terms of gender or something else. Nobody wishes to be on a board if he or she feels he or she is not qualified to be there. In the circumstances I am expressing the desirability that the objective of not fewer than eight of the members being women and not fewer than eight being men is achieved. That is the ambition and setting it out in legislation as opposed to making it a purely administrative function, which could be the case, is desirable. I do not believe that a Minister would ignore the provision of the legislation expressing the desirability if the Minister concerned has responsibility for equality. To say the least, it would be strange and anomalous.
I fail to understand why the Minister needs to water down the provision suggested in our amendment No. 28 that at least 40 per cent of the authority shall be women and at least 40 per cent shall be men. The Minister has indicated that he is responsible for equality and, surely, equality means just that and not desirability.
The Minister has also indicated that in making the appointments he shall have regard to the desirability that a majority of the authority shall be persons with disabilities, their representatives, families or carers. The numbers of males and females with disabilities is likely to be about even. If one seeks to make a figure of 40 per cent mandatory, it seems hard for the Minister to argue convincingly that he is not likely to get appropriate and qualified people for the job.
The Minister is not even obliged to have it within certain parameters, having rejected our amendment that the nominees would come from nominating organisations, thus avoiding the possible difficulty that the nominations from the nominating bodies within the sector might have a gender imbalance. The Minister has absolute flexibility in making the appointments. I find it difficult to understand that he feels he must put in place a caveat that they would be subject to desirability. It is, of course, desirable but there is no compulsion and no reason a Minister must follow the desirability. The Minister and his successors should not feel constrained in any way by being obliged to have a minimum of 40 per cent of both genders.
I have given it as my view that the primary consideration should be that the board would be made up for the most part of people with disabilities, their families or carers. It is also desirable that there would be not fewer than eight women and not fewer than eight men on the board. That is a reasonable provision. I have already indicated that in the formation of the interim board I have achieved both objectives and I anticipate that those objectives will be achieved in subsequent boards. One cannot give an absolute guarantee in regard to these matters. I am satisfied to trust the judgment and experience of my successors inasmuch as I feel Senators can trust me.
Amendment agreed to.
Amendments Nos. 27 and 28 not moved.
Section 20, as amended, agreed to.
Sections 21 and 22 agreed to.
SECTION 23.
Government amendment No. 28a:
In page 13, subsection (6), line 9, after "chairperson" to insert "or other member chairing the meeting".
Amendment agreed to. Section 23, as amended, agreed to.
Sections 24 to 26, inclusive, agreed to.
SECTION 27.
Government amendment No. 29:
In page 14, subsection (1), line 37, to delete "under section 36" and substitute "by virtue of Part III of this Act".
This is a technical amendment.
Amendment agreed to.
Section 27, as amended, agreed to.
SECTION 28.
Government amendment No. 30:
In page 15, subsection (6), line 27, to delete "or other benefit" and substitute "benefits".
Again, this is a technical amendment.
Amendment agreed to.
Government amendment No. 31:
In page 15, subsection (6), line 30, after "section" to insert "or with the consent of the Minister and the Minister for Finance".
Amendment agreed to.
Section 28, as amended, agreed to.
Sections 29 and 30 agreed to.
SECTION 31.
Government amendment No. 32:
In page 16, subsection (1), line 39, to delete "Authority," and substitute "Authority or".
Amendment agreed to.
Government amendment No. 33:
In page 16, subsection (1), line 40, to delete "a consultant or adviser, a member" and substitute "an adviser, consultant or member".
Amendment agreed to.
Government amendment No. 34:
In page 17, subsection (6), line 38, to delete "of the Authority".
Amendment agreed to.
Section 31, as amended, agreed to.
Sections 32 and 33 agreed to.
SECTION 34.
I move amendment No. 35:
In page 18, line 41, to delete "Minister" and substitute "Authority".
This section concerns the review of the legislation; it is a one line section but an important one. It provides that not later than three years after the establishment day the Minister shall initiate a review of the operations of Parts I and II of the Bill. Our amendment seeks to give that responsibility to the authority rather than to the Minister because, given its role and function under the legislation, the authority is the appropriate body to carry out the review. I presume that the review, like various multi-annual reports, would then be made available to the Minister to do with as he should and must.
Section 34 provides for a review of the legislation after three years of operation. Amendment No. 35 seeks to allow the authority rather than the Minister to review the legislation three years after establishment day. This is a most unusual proposal. In the normal course it is for the Minister concerned to review legislation and to bring his proposals for change to Government and the Oireachtas. Senators know the review of legislation involves a wide consultation process and in three years' time that will include bodies with an interest in the legislation. It seems inevitable that the process will impact directly on the National Disability Authority and I expect special regard will be had to its views on the options for amending the legislation at that stage. I hope that is satisfactory.
Amendment, by leave, withdrawn.
Section 34 agreed to.
Sections 35 to 38, inclusive, agreed to.
Title agreed to.
Bill reported with amendments.
Acting Chairman
When is it proposed to take Report Stage?
Now.
It is not agreed to take Report Stage now; it was not agreed on the Order of Business.
It was agreed to take Committee Stage only today.
I propose an adjournment until 11 p.m. and we take Report Stage then.
That is not agreed.
On a point of order, this arose on the Order of Business and it was agreed that the Bill would not be processed fully today. It was agreed we would take Committee Stage today and Report Stage would be dealt with on another day. The Leader of the House only proposed that we take Committee Stage and at this short notice we cannot change the Order of Business.
Acting Chairman
Have we a proposal for when to take Report Stage?
To clarify, on the Order of Business I laid down that we take all Stages.
No.
That is what I put before the House today. If Senators wish to return late on Thursday evening I am prepared to take Report Stage then.
It is essential that there be some time between Committee and Report Stages. It was my understanding that Committee Stage was being taken this evening — and we have given a considerable amount of time to it — on the basis that Report Stage was to be taken at another time, with a sufficient interval to consider the Minister's remarks on amendments and whether those amendments would be resubmitted. It is not possible to do that in the constricted amount of time proposed for this legislation. It is showing considerable disrespect to the House, particularly to a Bill being initiated here and to Senators who are giving a lot of time and effort to its consideration, to treat them in this manner. I do not think Report Stage can be taken this week.
Acting Chairman
Have we a proposal from the Leader that Report Stage be taken on Thursday?
I will discuss this with the Whips to see how we can progress the legislation. I will come back to the House with a report on the Order of Business, if not tomorrow morning then Thursday.
Can we fix it that Report Stage be taken on Thursday, subject to agreement among the Whips?
Acting Chairman
Yes, it will not be taken any earlier than Thursday.
Report Stage ordered for Thursday, 17 December 1998.
Acting Chairman
When is it proposed to sit again?
At 10.30 a.m. tomorrow. The Seanad adjourned at 10.30 p.m. until 10.30 a.m. on Wednesday, 16 December 1998.