Amendments Nos. 1, 2 and 17 may be taken together, by agreement.
Sustainable Energy Bill, 2001: Committee and Remaining Stages.
SECTION 1.
Acting Chairman
Mr. Ryan
I move amendment No. 1:
In page 3, line 11, after "Energy" to insert "Ireland".
On this occasion I agree with the groupings of amendments. Please do not take it that I will always agree because the rules of the House say that it must be by agreement. In this case, it makes perfect sense.
Is cúis ionadh dúinn nach bhfuil leagan Gaeilge ar theideal an údaráis nua seo. Cé nach ligimid orainn gur sinne na saineolaithe ar an gceist seo níl a fhios agam cén fáth nach bhfuil leagan Gaeilge ar an údarás. Mar sin, molaimid na leasuithe seo, go gcuirfi isteach na focail, "Fuinneamh Inmharthana Éireann – Údarás Fuinnimh Inmharthana na hÉireann".
That is the second amendment and there is a consequential amendment to the Title, amendment No. 17. To be consistent, we propose that the word "Ireland" should be inserted after "Energy", in section 1. I would be interested to find out from the Minister why, contrary to normal practice, no Irish language version was inserted in the Bill.
I understand amendments Nos. 1, 2 and 17 are grouped. Amendment No. 1 proposes that the Act be cited as the Sustainable Energy Ireland Act, 2001. I am of the view that the Short Title of the Act, as it stands in section 1, is generally reflective of the rather lengthy title of the authority in the Long Title. I would seek to prevail on Senators to leave the Short Title as it stands, on the basis that we are devolving functions to the authority relating to sustainable energy. The Title reflects that.
I will be pleased to accept amendments Nos. 2 and 17, to include the Irish language name of the authority.
Mr. Ryan
I thank the Minister.
Amendment, by leave, withdrawn.
Section 1 agreed to.
Sections 2 and 3 agreed to.
SECTION 4.
Mr. Ryan
I move amendment No. 2:
In page 3, subsection (1), line 29, after "as" to insert "Fuinneamh Inmharthana Éireann – Údarás Fuinnimh Inmharthana na hÉireann or in the English language".
Amendment agreed to.
Section 4, as amended, agreed to.
NEW SECTION.
Mr. Ryan
I move amendment No. 3:
In page 4, before section 5, to insert the following new section:
"5.–The Freedom of Information Act, 1997 shall apply to the Authority.
I hope the Minister will not be offended by this. If the slightly pretentious title of the Bill were to reflect its contents this would be an even more important amendment. Nevertheless, given that this is a semi-State body set up to carry out the functions listed in section 6, I am astonished there is no mention of the Freedom of Information Act anywhere in the Bill.
Section 18 referring to disclosure of information is a standard section which has appeared in many items of legislation setting up semi-State or arm's length State bodies. In the case of each body such as FÁS, the Health and Safety Authority, etc., a reference in, I think, the First Schedule of the Freedom of Information Act makes it clear that the injunction to confidentiality contained in a section, such as section 18, does not override obligations under the Freedom of Information Act. If we do not make reference to the Freedom of Information Act on Committee or Report Stages it will be impossible for the Department of Finance to make the normal statutory instrument order to bring this body under the aegis of the Freedom of Information Act because the injunction to confidentiality in section 18 will override that statutory instrument.
We simply want to raise the issue. I cannot believe the parliamentary draftsperson accidentally omitted reference to the Freedom of Information Act, therefore, one has to conclude there was a deliberate decision to exclude this authority from the aegis of the Freedom of Information Act. I would like to hear the view of the Minister of State on this issue.
I thank the Senator for raising this important issue of access to the authority's records under the freedom of information regulations. The Irish Energy Centre has been subject to the Freedom of Information Act, 1997, since 21 January 2001. This is because Enterprise Ireland, of which the centre is a division, came under the Act on that date. I fully agree that the new authority should be made subject to the Freedom of Information Act and I would be anxious that the authority would be so subject as soon as possible. However, I believe the appropriate way of doing this is through updating the First Schedule of the Freedom of Information Act by the relevant Minister making an order under that Act.
It is more appropriate to embrace any new bodies being set up within the ambit of freedom of information in this way as provided for by the Oireachtas. In my view making different bodies subject to FOI under different Acts is not appropriate. I will ensure that the new authority is included in the Schedule to the Freedom of Information Act as soon as possible after the establishment of the new authority.
Mr. Ryan
I am happy to hear what the Minister has said. However, I would point out that previous legislation – I am subject to correction – the Aviation Authority Bill and a number of other Bills, contained a reference to the Freedom of Information Act and, in particular, a reference to the fact that the body being set up would be a body covered by Schedule 1 of the Freedom of Information Act. It appears to be a departure from precedent to exclude the Freedom of Information Act. I am a little wary of the relegation of this fundamental institutional change to the realm of secondary legislation. It would be difficult for whoever was in Government because it is a difficult and new institutional relationship. People know much more about the Government's plans, civil servants' plans and the thinking. This is healthy development and one that most people outside the establishment regard as a good development.
Will the Minister of State explain, given that previous legislation introduced an amendment to the Schedule to make it clear, the reason there is no such amendment here? It appears there will be a hiatus when this body moves from being a sub-division of Enterprise Ireland, where it is covered by the Freedom of Information Act, and becomes An tÚdarás where it will not be covered by the Freedom of Information Act until the Department of Finance gets around to making the relevant order whenever, if ever. I do not understand why, in a political culture which is supposed to be moving more in the direction of freedom of information, the consequence of this Bill will be, at least in the short term, accepting the Minister's bona fides to take the authority out of the ambit of freedom of information. Perhaps the Minister of State can explain why that is a good thing because I do not see it as such.
In deference to the Senator's amendment, I checked this matter carefully and responded accordingly. The Oireachtas decided that public bodies should come under the FOI by way of order under that Act. As a result of discussion and having checked the position it is deemed appropriate to do it in that way. I assure the Senator that will be done and will be done expeditiously.
Mr. Ryan
I do not want to delay the House but can the Minister of State tell the House with certainty that there will be no hiatus, no time when this body will not be covered by the Freedom of Information Act?
I will ensure that the new authority is included in the Schedule to the Freedom of Information Act. That will be done expeditiously.
Mr. Ryan
Will the order be retrospective to the foundation date of the Údarás?
We will endeavour to do that.
Amendment, by leave, withdrawn.
Section 5 agreed to.
SECTION 6.
Mr. Ryan
I move amendment No. 4:
In page 4, between lines 10 and 11, to insert the following new paragraph:
"(a)to provide a working definition of sustainable energy and to update the definition on a regular basis having regard to developments in available technology.”.
This is a deliberately aspirational amendment. I do not need to declare an interest in the legal sense but in the unfortunate period when I was not a Member between 1992 and 1997 I devoted my limited talents to research in the area of cleaner technology and learned a good deal in the period about many things, one of which is that it is necessary because of the environmental impact of energy usage. One could argue about the timescale but with the looming crisis of both greenhouse gases and the depletion of hydrocarbon fuels the concept of sustainable energy will become much more central to the future of the industrialised and the under-developed world and will need redefining and reinvention on a continuing basis because the position will change.
One of the things society needs is to be forward looking. We have been very bad at it. The buffers we are hitting in terms of the infrastructural crisis, housing crisis, health crisis are all because we as a society have been reluctant to allow ourselves to be pushed to think further. The authority, which in my experience is extremely well regarded as a forward-looking and progressive body, should be invited to challenge us on a continuing basis.
Our amendment to provide a working definition of sustainable energy and to update the definition on a regular basis having regard to developments would allow us to recognise change and not become complacent. I would be quite happy to talk through the detail of the wording. However, the principle that sustainable energy was the same twenty years ago as it is now and as it will be in twenty years' time is not tenable. We need to decide how to redefine it and whether it should be done within Government or by those who advise Government. Ultimately, these are matters for the Oireachtas and Government but the process of coming to such a decision would be advanced if the authority were to be encour aged to keep on looking at, challenging and redefining what is meant by sustainable energy.
The words "sustainable energy" appear to be tripping off the tongues of people across the world as I found out in recent conferences.
Mr. Ryan
George Bush says that he is in favour of it too and that is where we have a problem.
He has his definition. I once heard a very eminent person define sustainable energy as that with which our grandchildren would be pleased. I think this is quite appropriate.
I thank Senator Ryan for his amendment. In the Green Paper on Sustainable Energy, which I published in September 1999, I endeavoured to set down how Ireland would progress towards meeting its energy requirements in an environmentally and economically sustainable way, having regard to economic growth and security of supply objectives. In the Green Paper sustainability is defined as "ensuring that the needs of present generations can be met without compromising the ability of future generations to meet their needs".
As I set out in the Green Paper, a sustainable energy policy should firstly ensure security of energy supply in order to supply economic and social development while protecting the environment. It should maximise efficiency of generation and emphasise the use of renewable resources. It should promote energy conservation by users. It should minimise emissions of greenhouse gases and other pollutants both by clean generation and sustainable consumption levels in all sectors. It should maintain local air quality and limit and reduce the Irish contribution to regional and global environmental problems.
I am satisfied that the functions of the authority, as set out in section 6(1), encapsulate all these requirements. I do not agree that the sustainability concept needs constant redefining. It depends on constantly using best available technology and best practice to achieve a sustainable goal. It should not be the function of the authority to define sustainability but to ensure that we are utilising best practice in all our energy supply and use.
Mr. Ryan
I half agree with the Minister on this. I am not going to make an issue of it. We can come back to it in other places.
Amendment, by leave, withdrawn.
Mr. Ryan
I move amendment No. 5:
In page 4, between lines 19 and 20, to insert the following paragraphs:
"(e)to propose legislative and fiscal measures to achieve the objectives stipulated in the foregoing subparagraphs of this subsection;
(f)to prepare and publish annual reports on the relative performance of the State and each of the other member States of the European Union relating to sustainable energy objectives;".
I never claim great precision in drafting skills. There are two important issues here. Firstly, we will all have to change our habits. It will either be done proactively or we will have to react to the mess we get ourselves into. Despite what the United States may believe, we cannot continue to waste energy in the way we have been doing, either in terms of energy resources or in terms of the planet's capacity to assimilate waste energy. Energy is never destroyed; it is simply degraded and it all floats around accumulating in a far from useful fashion. The side effects of energy production are enormous.
In this amendment, we suggest that the authority should look at legislative and fiscal measures to achieve the objectives stipulated. Legislation and taxation are exclusively functions of the Oireachtas and that is as it should be. However, our parliamentary system is clogged up and the enormous skills of our public service are also overstretched. Given that the body has the job of looking at sustainable energy generally, it seems pointless not to give it the task of looking for ways to move us on in the desired route by way of regulation or taxation. This is what the addition of paragraph (e) would mean.
The second one is even more important. To a degree, the Environmental Protection Agency looks at our comparative performance in the area of the environment. We cannot rely on Government, regardless of who is in Government, to produce objective reports of comparative performance. We need an independent agency which will outline how Ireland is doing by comparison to the objectives we set ourselves and also by comparison to our colleagues in the European Union. They will assist us by telling us how everybody else in the European Union is doing.
I sit on the intermittently functioning sub-committee of the Joint Committee on the Environment and Local Government, which looks at sustainable development. I discovered there that the Department of Finance's mission statement did not have any reference to sustainable development even though it is the driving force for most public policy. I also discovered there that the Department of Enterprise and Employment did not know that our sulphur dioxide emissions per capita were way above the European average as are our NOX emissions. We have the good fortune to have a strong wind from the south west which means that we do not have to live with the consequences of our less than perfect performance.
We need to question and challenge ourselves. This amendment calls on the authority to look at our performance, compare it to what we said we would do and compare us with other countries in the European Union, particularly the civilised countries of northern Europe who seem to have devised a formula by which it is possible to mix outstanding economic achievement with high quality environmental performance. We are in danger of sacrificing the latter for the former. An independent authority reminding us of what we promised to do and what we had or had not done would help greatly.
I do not accept that the authority should have the power to propose or initiate measures of a legislative or fiscal nature as proposed by Senator Ryan. I am satisfied that the authority could at any time advise the Minister on legislative or fiscal measures, under section 6(1)(f), which states that the authority will have a function to provide advice, information and guidance to the Minister relating to the functions of the authority.
With regard to benchmarking of the authority's performance against other member states of the European Union, I do not see that as a function of the authority. It is rather a reporting matter, which is well catered for in sections 22 and 23 of the Bill.
Mr. Ryan
I know that the Minister of State is not given to being deliberately unhelpful. I was not suggesting that this body could initiate legislation as I know that would be unconstitutional. However, there is a long and intense debate in the developed world about the instruments to be used to achieve environmental objectives. The "idealogues" who run the White House are passionately committed to what they would call market mechanisms which, incidentally, have never worked but which they still believe in because it suits the interest groups who put the US President in power. Most of civilised Europe accepts that a combination of good, imaginative regulation and fiscal measures is the most efficient way of achieving the objectives. There is no single answer. To leave the drafting of legislation to Departments alone would be to lose certain skills. Of course, the Minister can call in the skills from the authority.
However, we need public awareness and debate on this issue. We need a shift in public habits. For instance, to deal with the tyranny of the car, as it is sometimes called, we need to look at public transport. One of the issues in terms of sustainable energy is the degree of subsidy which it is worthwhile giving to public transport to encourage people to move away from using the car. It is very difficult to have that issue debated and properly evaluated within the structure of Government and Departments. It is a matter for Government to decide what to do, but independent bodies, properly resourced, are needed to provide advice.
The Environmental Protection Agency plays an important role in telling us that our water quality is getting worse and that we need to pay attention to the air quality in our cities. Similarly, the role of the authority which we are now discussing should be to provide information and advice, which the Government does not necessarily have to accept. We will have access to much of that information through the Freedom of Information Act. All that is involved is to formalise something which the Minister of State thinks it can already do and I do not see why it should not be formalised.
A second requirement is to look at performance. Who does that at present? The Environmental Protection Agency does a little of it in relation to water and air quality. There is very little work being done on our comparative performance within Europe, other than what the European environmental agency does. We should not wait until some big brother in Europe tells us that we need to improve. If we really aspire to be an economically advanced and environmentally healthy country, we need to measure our own performance rather than wait for others to tell us. That is what amendment No. 5 would have us do. It would simply require the authority to assemble information across the European Union and advise accordingly.
I have seen this system work extraordinarily well in a branch of a European multinational company, which simply provided comparative figures on water usage for each of its plants across the EU. No stick was being waved over the heads of management, but it was found that the water usage of the Irish plant was way out of line with the rest of Europe. That was because water is cheap, if not free, in Ireland – cheap to industry and free to the rest of us. As a result of that comparison, there was embarrassment at the Irish plant about the excessive usage of water. Even though it was not a huge economic issue, water usage was reduced dramatically because of this being highlighted in the benchmarking exercise.
That kind of comparison is necessary. We have been making excuses for ourselves over the past five or six years, and I am not being party political in this regard. Some of the excuses are valid. Things happened which nobody ever anticipated. The economy is 90% larger than it was seven years ago. Because of that, we must set ourselves new standards, but we cannot do that from within the mechanism of government. It should be done through an agency which has the job of telling us how we are performing relative to our targets and to other people's targets. That is what paragraph (f) would do if it was accepted.
As the Senator has acknowledged, I certainly do not intend to be unhelpful. I hope I can portray that during the debate, if not on this amendment. I have no dispute with the Senator's statement that fiscal and regulatory measures are efficient in reducing emissions. We must have such measures and they can be put in place by the Minister on the advice of the new authority. That advice should be sought and, indeed, it has been my practice to avail of that process. The Irish Energy Centre, as it stands, has a wealth of expertise and experience on which we are very happy to draw. That situation will be enhanced by putting it on a statutory basis and beefing it up generally, both in terms of quality and quantity.
On the Senator's question as to who evaluates performance, he really answered it himself. The EU prepares annual reports on emissions and the performance of each member state is covered in that report. That process is independent of Governments and of any authority such as we are now discussing. I reiterate my view that the advice, information and guidance which the authority will provide to the Minister of the day is what is called for.
Mr. Ryan
Only last week, there was a newspaper report on the quality of bathing water in European countries. Ireland was not at the top of the list, although we did not do too badly. Countries which one might expect to have greater problems with their bathing water, such as the Netherlands, were ahead of us. I do not believe that countries like the Netherlands, Sweden, Denmark or Finland wait for the European environment agency report to evaluate their environmental performance. The Danes have been complaining for years, and more recently the Swedes, that the European Union is holding them back from doing things which they would like to do.
It is not a particularly noble target to say that we want to do as well as Europe requires. That is not where we should be. If we aspire to be a modern, rich, small European country, we should lead the European Union, not follow its standards. To lead, we must think, measure and evaluate independently, according to more demanding standards than the European Union's. There is no evidence that it affects competitiveness or the ability to attract internationally mobile capital. Sweden has a better record than us in attracting direct foreign investment.
It is a reluctance to set ourselves sufficiently high standards. We would never have set ourselves a target of 9% per annum growth in GDP. Everyone would have said it was impossible. We would not have set 7%. The consensus among the economic elite in the 1970s and 1980s was that 4% to 4.5% was the best we could sustain without a major inflation crisis. It was wrong. We need independent thinking looking at what is the best we can aspire to. Measuring ourselves against a post hoc European standard, which is probably a year out of date when it reaches here, is inadequate. That is why I am disappointed at the Minister of State's not accepting the amendment. It is not the wording, but the principle, that we should publish independent reports on our performance to encourage us to establish higher standards, which is important.
My only comment is that we are leading the way in Europe. My discussions at meetings and on the sidelines reveal that we are the envy of Europe. On the issue of sustainable energy, which is now Government policy, our Green Paper, sets a higher target for renewables than any set in the EU. We are proud of that. Measures will ensure we achieve that target. We trebled our target for electricity production via renewable sources, primarily wind energy. Before the end of the week, I will make an important announcement about the plans to achieve this. We lead the way and by 2005 will produce 12% of our energy requirement via renewable sources. From a low basis, that is leading the way.
Amendment, by leave, withdrawn.
Government amendment No. 6:
In page 5, subsection (2)(i) line 12, to delete "and, with the consent of the Minister, to participate" and substitute "and participation".
The new authority will be engaged in international activities, such as attending conferences, workshops and seminars, giving presentations and similar activities. It would be unduly restrictive if the authority had to seek ministerial approval each time a staff member engaged in such activity. It can be seen from subsection (2)(f) that the authority can be requested by the Minister or the Government to represent them at international fora. That is the reason for this deletion.
Mr. Ryan
I cannot help saying that I am astonished that the words proposed to be deleted were there.
Amendment agreed to.
Question proposed: "That section 6, as amended, stand part of the Bill."
Mr. Ryan
I have two questions on the section as amended. On paragraph (f), "to provide advice information and guidance to the Minister and each other Minister or bodies as the Minister may direct." Why not include "provide and publish," subject to the provisions of the Freedom of Information Act? It would be a pity if the advice was not made public because an important role of the authority must be to persuade public opinion and consumers that we have no choice but must move to sustainable energy. Does the wording "to provide advice information and guidance to the Minister and each other Minister and bodies as the Minister may direct" mean that another Minister cannot seek advice from the authority without the Minister's approval? If so, why? There are areas, such as enterprise and employment, the environment and so forth, where there should be no bureaucratic channel to do something simple.
Other Departments will have access to this or any other agency. During my watch, I never saw any bureaucratic or other obstacle to that facility. It is normally advocated. Other appropriate Departments discuss with us and draw up plans involving the Irish Energy Centre, the new body. The Department of Social, Com munity and Family Affairs is involved with fuel poverty and there is close interaction there. On work programmes or an enterprise, for example, at the behest of another Department, it is reasonable that the authority of the Minister be required.
Mr. Ryan
I have another question. Sustainable energy is important for us and critical for the developing world. The Minister can say that there is nothing to stop the authority from assisting developing countries, but it would be good if there were a specific reference under the authority's functions to providing assistance for developing countries, particularly the least developed. It would be an appropriate statement of our philosophy. I accept that there is nothing to stop this but the statements on the functions of a body like this say something about the way we see the world. A critical issue is the development of sustainable energy to the almost three billion people who live on less than $2 per day.
It is very timely that the Senator should raise this because an integral part of Government policy is to do precisely what the Senator said. It is not just policy, it is being done in a very practical and pragmatic fashion. In recent weeks I was at the UN Commission for Sustainable Development conference. The Minister for the Environment and Local Government also attended. The Irish message was, and we strongly advocated it, that we wanted to see the development of sustainable energy in developing countries. We fear the nuclear voice which is becoming louder all the time and which advocates nuclear production of energy – in the context of global warming and Kyoto – on the basis that there are no emissions of CO2, although it conveniently forgets the other potentially huge deleterious effects of that mode of production such as the waste with which the technology has not caught up. We do not want to see other countries, particularly developing countries which need energy production, being caught by that and being lumbered with a mode of energy production which is not sustainable. It is hugely important to convey that message at every forum available to us. That is being done in a practical fashion.
Question put and agreed to.
SECTION 7.
Question proposed: "That section 7 stand part of the Bill."
Mr. Ryan
In terms of additional functions, I am afraid the primary one of sustainability could get lost in a plethora of additional functions. Section 7(1) reads "relating to the production, supply (including security of supply) and use of energy as the Minister considers appropriate". That is not even within the constraints of the Bill. That could be anything the Minister wants to do.
Section 7(2) reads: "an order under this section may assign to the Authority any function which relates to the production, supply (including security of supply) and use of energy and which arises from, or is necessary for, the implementation of any provision of the treaties governing the European Communities". How will that mesh in with the electricity regulator without turf wars developing? We have a regulator to deal with many of these issues in the electricity area. How is the Minister going to ensure that section 7(2) does not cause some uncertainty about spheres of reference of the authority and the electricity regulator? I will be interested in what the Minister of State has to say.
I am advised that can only be done by positive order and for that, the approval of both Houses is required.
Mr. Ryan
That is not an answer to my question. The question was, how do we make sure we do not have conflict? I asked how we ensure its sustainability function is not diluted, not about the process by which the decision is made.
I must be slow this morning but I do not get the gist of the Senator's question.
Mr. Ryan
Section 7(1) reads:
The Minister may, following consultation with the Authority. . . . . any other Minister of the Government who, in the opinion of the Minister, is concerned, by order assign to the Authority such additional functions relating to the production, supply (including security of supply) and use of energy as the Minister considers appropriate.
The Minister may consider anything appropriate, but it might not be anything to do with the function of this body which has to do with sustainability. Therefore, the Minister could, by order, dilute its primary focus which is sustainable energy.
Section 7(2) reads:
Without prejudice to the generality of subsection (1), an order under this section may assign to the Authority any function which relates to the production, supply (including security of supply) and use of energy and which arises from, or is necessary for, the implementation of any provision of the treaties governing the European Communities. . . . . .
If one is not extremely careful, one will end up with this authority being given functions that perhaps might be more appropriately given to the electricity regulator. Has the Government thought about this? I assume it has. If it has, how will it distinguish between the functions of the regulator and those of the authority since there is no specific reference to sustainability in section 7?
The important word here is "appropriate". The section reads: "as the Minister considers appropriate". I cannot see any Minister delegating to this new authority a function that would be more appropriately delegated to the electricity regulator given the regulator's present function or the new functions he will shortly assume. I would have thought the words "as the Minister considers appropriate" to mean at the discretion of the Minister and that would call for the intelligence, knowledge and skills of the Minister in situ to assign to this authority the functions he deems appropriate to it which would be vastly different to those that would be appropriate to the regulator. I cannot see a conflict there, and I do not want to say anything uncharitable about the brain power of any future incumbent.
Mr. Ryan
They will never be as good as the present incumbent. I would invite the Minister of State to consider putting some reference to sustainability in that section.
Question put and agreed to.
Section 8 agreed to.
SECTION 9.
Amendment No. 8 is an alternative to amendment No. 7. Amendments Nos. 7 and 8 may be discussed together by agreement.
Government amendment No. 7:
In page 7, subsection (17), to delete from and including ", in" in line 16 down to and including "Board." in line 19 and substitute the following "have regard to the objective of there being not less than 4 members who are women and not less than 4 members who are men.".
I propose a Government amendment to amend section 9(17) by inserting a provision which reflects Government policy in relation to the appointment of men and women to the boards of semi-State companies. I propose that, in making appointments to the board of the new authority, the Minister shall have regard to the objective of there not being fewer than four members who are women and not fewer than four members who are men. The new board will consist of 12 members one of whom will be the chief executive. This leaves 11 members to be appointed by the Minister which means that four members roughly correspond to 40% of the board. This is a formulation which met with Oireachtas approval in the Comhairle Act, 2000. I sincerely hope it will meet with Senators' requirements.
Mr. Ryan
This Government has an appalling record on gender balance perhaps epitomised by the board set up to deal with the pensions funds on which there is only one woman, notwithstand ing the fact that the majority of people on whom most of the pension funds will be spent will be women. The Minister for Finance decided there was only one woman worthy of being on that board. The record shows a lack of enthusiasm for gender balancing which is quite distressing and retrograde. People can make all the jokes they wish about excesses of political correctness – it is easy for second-rate comedians to find things about political correctness to poke fun at – but if one does not state what one wishes to do, it most assuredly will never happen.
I am unhappy with the words "have regard to the objective of there being an equitable balance". I do not understand why we cannot state that at least 40% of the members of the board shall be women. Is the Minister of State saying that the Government is not certain there are four women good enough to serve on this board? If the Government will not accept the words "comply with the requirement that at least 40% of the members of the Board shall be men and at least 40% of the members shall be women" I will be happy to accept "a requirement that at least four members of the Board". We should use the words "the requirement", not "have regard to the objective". One can have regard to all the objectives one wants but one can still say that women were not good enough, that one found that the best people for the job were men. The best people, one will find, are men because all those in the places one would currently look are men given that we do not promote women. I do not understand why we cannot state "a requirement that at least 40%". It is a statement about the masculine nature of science and engineering. Between 25% and 40% of students now taking engineering courses are female.
If we wish to sustain that movement, we must make women, who are capable of doing the job, visible in areas like this. Using the words "have regard to the objectives" is a dilution though it is a step forward. I am disappointed we did not get a little further on this issue.
I am a little disappointed with Senator Ryan.
Mr. Ryan
No.
He has very grudgingly, and belatedly, given credit to the Minister for stipulating that at least four members of the board shall be women. That is not dictatorial, as Senator Ryan rightly said, it is a significant step forward.
I recall many instances since I became involved in politics of pressure being brought to bear on various Governments and Ministers to achieve gender balance. I recall an instance, before Senator Ryan and I became Members of this House, when a gender balance stipulation was not met because Senator Ryan's party had a difficulty, for practical reasons, in going along with it. There are many instances in which practical problems can arise.
Senator Ryan poses the question that surely there are four women of the calibre required to become members of the board being established by the Minister. There may well be 44 or 144 such women but they might not be willing to serve. Many questions arising from Senator Ryan's contribution have not been teased out. I commend the Minister for what he is doing. It is very laudable that he should stipulate that at least 40% of the members of the board shall be women.
We would all aspire to moving forward on the issue of gender balance, none of us would be satisfied with how far we have already gone. When making appointments to boards, I endeavour to find the person most suitably accomplished and capable of serving. Some of the boards deal with safety matters such as nuclear safety and aviation safety, and it is crucial that one appoints the right people. I consider myself very fortunate if, having used the criteria I mentioned, I arrive at that objective. The formula I am proposing met with the approval of both Houses when dealing with the Comhairle Act.
Amendment agreed to.
Amendment No. 8 not moved.
Question proposed: "That section 9, as amended, stand part of the Bill."
Mr. Ryan
I wish to draw the Minister of State's attention to subsection (13) which makes provision for some things which make perfect sense and others which are a lot less easy to accept. It states: "A member of the Board may at any time be removed from membership of the Board by the Minister if [this is where we get into difficulty] in the Minister's opinion the member has become incapable through ill-health of performing his or her functions". The word "opinion" is carefully chosen in legislation because it is very difficult to prove an opinion wrong. If the phrase "the Minister is satisfied" was used, one would have some type of objective test. The phrase "in the Minister's opinion" is precisely that. We are all entitled to our opinions. It is not something one has to prove, it is an opinion, it is what one thinks about something. It would be much better to use the phrase "if the Minister is satisfied the member has become incapable through ill health of performing his or her functions." That would require some type of objective test.
Subsection (13) also states "or has committed stated misbehaviour". This is saying that in the opinion of the Minister, a member of the board has committed stated misbehaviour, not that the member has committed stated misbehaviour. In the way this is written, the member may be removed if, in the Minister's opinion, the person has committed stated misbehaviour. The Minister does not have to prove his case. That is wrong and is contrary to natural justice. If we try to implement that we will end up in the courts and we will lose. There is no suggestion of due process. Opinions do not have to be formulated by due process, one can pick them off the top of one's head.
The subsection further states: "his or her removal appears to the Minister to be necessary for the effective performance by the Authority of its functions." Each member of the board can be sacked by the Minister if, in the opinion of the Minister it is necessary to do so in order that the authority can do its job. This is entirely a ministerial decision with no requirement that the matter be referred back to the Oireachtas. Because it is an opinion, there is no need to give the person a right to due process.
I am not particularly concerned about the 12 members of this authority; they may be quite happy to be sacked from the board and to return to doing something more satisfying. I am concerned about the use of language in this section and its implication that Ministers can sack members of boards such as this one on the basis that they form an opinion about them. There should be some objective test by way of a positive order of the Oireachtas or at least a negative order of the Oireachtas before members can be sacked from boards such this one.
It is easy to envisage conflict between a board such as this one and Government as this is an area that involves difficult choices for whoever will be in Government on taxation and regulation in which a large number of conflicting interests are involved. It is, therefore, a pity that the Minister cannot see fit to include provision for some objective test by which members could be adjudged not to be fit to be on the board any longer.
It seems Senator Ryan unearthed at least part of a problem that the Minister of State might be kind enough to look at and come back to us on it on Report Stage.
There are a number of different elements, the first of which Senator Ryan is right about – the question of whether, in the Minister's opinion, a member has become incapable through ill health of performing his or her functions. I am not sure if the Minister is qualified to hold an opinion in this area. When one talks of opinion in a matter like this, one would normally think of the expert opinion of a medical doctor who is the only person professionally qualified to hold such an opinion. He or she might well advise the Minister that a person was unfit through ill-health to perform his functions, but an opinion held by a Minister who is not a medical practitioner and has not examined the person as a patient, would not be sustainable in law. For that reason I believe the first element of this paragraph is deeply flawed. I ask the Minister to come back to the House with a view on that.
With regard to a member having committed stated misbehaviour, I am not quite so worried about that element. The words ". his or her removal appears to the Minister to be necessary for the effective performance by the Authority of its functions" do not cause me any great agony, but perhaps the paragraph would be better if it included the words "if the Minister is satisfied". It is a case that the Minister would be satisfied because it appeared to him or her that the removal of the member would be a good thing. We have got to give the Minister the right to remove somebody in those circumstances, otherwise we would be back here bellyaching that the Minister is impotent, that a member of the board misbehaved in the most fantastic ways, yet the Minister had no right to remove him.
There is a kind of descending order to this. Senator Ryan put his finger on something that is important in terms of medical opinion. The phrase "that the Minister is satisfied" is preferable and it would be helpful if that could be rejigged to cover the three elements of this paragraph. I am not as concerned about the other two elements.
One has to be terribly careful about using phrases like "medical opinion". Apart from anything else, if the Minister is wrong and that became known it could be damaging to the person's future employment prospects. The Minister might say, "I have got to get rid of this fellow because he is not capable of doing the job, his health is rotten." In those circumstances, who else would employ that person?
As politicians, we are a little sensitive about this matter. I have had some ups and downs in my health. I know that at one stage it was being rumoured around the constituency by malign elements that my health was so impoverished that it was being said, "Poor David, he won't be standing again".
There are no malign elements in the Senator's constituency. They are all academics.
It was extremely kind of those persons whom, in the sanctity of this House, I will not name, to be so concerned about my health, but I thought it was done with a malicious intention to damage me. In the matter of medical opinion, we must be careful. Having looked at the matter, perhaps the Minister will come back to us on Report Stage, unless my colleague intends to put the issue to a vote.
I must agree with certain parts of Senator Ryan's assessment of this section. In the past members of boards have been removed on the basis of political motivation. Many board appointments are political appointments. There could be reason to suspect that a member may be removed on a political issue.
Apart from Senator Ryan's philosophical definition of an opinion, there are many opinions on many matters and political opinions are very important in the political system and they have a habit of imposing themselves on semi-State boards and authorities. There should be some safeguard in place for members of boards without eliminating the Minister's right to remove a board member on a particular basis. Senator Ryan is partly correct in suggesting some safeguard should be put in place in this section.
I was taken initially with Senator Ryan's discovery of this opinion factor, but as he went on to develop it I was not entirely convinced about it. He oscillated between substituting the phrase "if the Minister is satisfied" for the phase "if in the Minister's opinion". There may be a major legal difference between the meaning of two, but on a simple literal basis I do not understand what it is. If the Minister has formed an opinion, it would be assumed by definition in the Constitution and by law that such an opinion is based on the best information available to him and, therefore, that opinion must be to his satisfaction. Senator Ryan then went on to refer to a positive order and a negative order.
On the question of political patronage, it goes without saying that political patronage has been part of the culture of Governments from the foundation of the State in terms of boards and semi-State boards. I remind my colleagues opposite that history is littered with examples of people who have been fired from boards, including recent incidents. One of the men to the fore in that regard has hit the headlines of the front pages of today's newspapers. He decided to go through the semi-States like a dose of salts and shafted people left, right and centre politically speaking. There are many examples and we could all lash out in this regard, but we must ask ourselves what is practical and pragmatic for Government.
Senator Norris adverted to a very important matter. He said it was important that the Minister would be cognisant of what incompetence through ill health meant. I am sure there are devices and mechanisms within every Department for every Minister to avail of and call upon to make such a decision. I am sure no Minister would be so callous as to say willy nilly that a person is of such ill health as to be incompetent to continue to serve on a board.
If one is talking about a positive order or a negative order, one is talking in terms of such a provision applying to Ministers in every Department in relation to all State boards. One could not apply such a provision only to boards, agencies or authorities such as this one. If one is to comply with natural justice, as Senator Ryan talked about it, one would have to invoke such a provision for every board. The logistics of doing that would be baffling and mindboggling and I do not know what mechanism one could use to do that.
The debate to which Senator Ryan adverted is a major one. He skirted around the edges of it. That debate has been taking place for some time and it will continue, but that is not to take from the merits of having in place an objective, independent adjudication mechanism of the continued suitability or otherwise of board members. Senator Ryan oscillated between substituting the words "if satisfied" for the word "opinion" or the words "positive order or negative order as is appropriate" for the word "satisfied". This wording of the paragraph is the way such a provision has traditionally being included and it is what is preferable in the absence of a more appropriate mechanism that is practical and pragmatic. One cannot tie the Minister's hands behind his back and say he has set up a board and such membership will be held by the members for their life, irrespective of how the board performs. We are all human beings and even if we are appointed to boards, it does not automatically transcend us into the clouds of wisdom and knowledge.
Any Minister must realise that if he or she appoints a board, it must work effectively and the Minister must have the authority to review it on an ongoing basis. To suggest otherwise would require a Minister to return to both Houses, by way of a positive or negative order, and on each and every occasion he or she is satisfied that a member of a board is not functioning. We have seen recent positive examples of boards having to be replaced by other boards in the interests of progress and the liberalisation of markets. We should be careful because the issue is substantial. We could not deal with it in a very short debate.
The provision in question is standard in many Acts setting up semi-State bodies to which appointments are made. However, it is legitimate that Senators question the issue. The Minister must form an opinion or, as Senator Norris said, be satisfied when appointing someone in the first place. He would have to refer to curricula vitae and seek referees to ensure the appointee is competent. Likewise, when it comes to unfortunate cases where dismissals are required – I am thankful none has occurred in my term thus far – the Minister would have to be satisfied that the candidate does not measure up to the job or is disrupting the work of the board, notwithstanding the original decision to appoint the person. There are diverse reasons that might contribute to the Minister's forming an opinion on why a dismissal might have to be made. When dismissing someone, one would have to take advice and consult appropriate people.
There is an ongoing practice in which I engage myself of speaking regularly with the chairmen of boards to discuss personnel and the workings of the boards etc. Most Ministers do this. I find it very useful to keep updated and to maintain a rapport with the chairmen. Given that the Senators have raised the issue of appointment to boards, we must reflect on it.
I am glad the Minister of State said he would reflect on the issue. Perhaps it would be helpful if the statutory provision in question were regularly included in Bills. This should be looked at more carefully.
What worries me is the question of medical opinion. It looks as if the Minister of State is purporting to be able to give a medical opinion – he obviously is not. There is a conflict there. I see one of his advisers disagreeing, so the Minister of State may counter the point I have just made.
With regard to the removal, and having read this morning's paper, there is a relevant analogy to which I will refer. I will do so without taking sides because many of the people on the board are known to me. On the outgoing board, I know Frank O'Reilly, a former chancellor of Trinity College Dublin and a very distinguished man. I know people on the incoming board such as Doireann Ní Bhriain.
The Minister, in terms of the College des Irlandais, Paris, wishes to infuse new blood into the board and is having some difficulty. There may be some resistance from those who say they have worked very hard on it for 15 years and should not be dismissed. The ambassador has sent a communication, which has found its way into the media, in which he says that it is not clear that all the five remaining nominees on the Irish side have contributed much or have much to contribute to the administrative council. That seems to be the advice to the Minister, which he has to take into account in forming his opinion. The board members played their role in stage one of the operation, but now the Minister wants to introduce vigorous young people and an element of gender balance. That was mentioned in this debate. Three of the 14 members of the new management board are women. That is not the proportion that we were looking for, but at least it is an improvement. There were no women on the board that is being replaced so we are moving in the right direction. It may be a matter for the Minister to consider and address again on Report Stage. It is not as unambiguous as some of us felt, such as Senator Ryan in his initial contribution.
Mr. Ryan
I am aware this is a standard section. I have always objected to such sections in that it is like a sledgehammer being used to crack a nut. Nobody would dispute the necessity for the powers granted in the section but rather the terminology that is used and the lack of proportion between the likelihood of them being needed and the scale of the discretion at the Minister's disposal. I will not insist on that.
I am concerned about subsection (10), which states that "a member of the Board other than the Chief Executive shall not serve for more than 10 consecutive years." A later provision states that the chief executive shall be appointed for a period of five years and may be reappointed. Is there a possibility that the ten years could be used to guarantee the reappointment of the chief executive?
To guarantee the appointment of—
Mr. Ryan
Reappointment. The term of office is five years.
I do not see an inherent guarantee. The chief executive is a professional employee who has to perform his duties in a professional and competent fashion. In some State companies, the chief executive is not a member of the board, but attends board meetings. My personal conviction is that the chief executive should be a member of the board. I have taken the opportunity to correct that in my areas of employment. It would be a matter for the board to monitor the performance of the chief executive and take appropriate action if necessary.
Question put and agreed to.
Section 10 agreed to.
SECTION 11.
I move amendment No. 9.
In page 8, between lines 6 and 7, to insert the following new subsection:
"(8)The Minister shall review the effectiveness and operations of the Board 1 year after its establishment and report thereon to the Houses of the Oireachtas."
It would be a good idea in terms of sustainable energy, because our scientific understanding of technologies is changing so rapidly, if the Minister would review the operations to see how satisfactory they are, make necessary amendments and report to the House after year one.
What Senator Norris had in mind was the introduction of new blood. I believe that Ministers set out to appoint people to boards who have the appropriate expertise. Arrangements for a regular turnover of board members will provide for new blood coming in every year, after three years. Under section 9(15), the Minister may reappoint a board member who has retired from the board if they have been effective on the board. If one has a valuable asset in terms of human resources, whether it is a board member or a fitter or engineer, one would want to hold on to that person.
It is clear that the performance of the board can only be judged against the effective or otherwise performance of its functions by the new authority. There is ample opportunity for performance reviews of the new authority in sections 22 and 23 and we may be discussing it later in another context. In the light of the existing provisions of the Bill, I would be disinclined to accept Senator Norris's amendment.
The Minister is correct in the final part of what he said, regarding the fact that what I am looking for is not just the possibility of critically reviewing the members of the board as much as the operation of the board. Now that I have looked at sections 22 and 23 it seems that my concerns are pretty well covered there – the annual report of the activities and so on. I am happy enough to withdraw the amendment.
Amendment, by leave, withdrawn.
Section 11 agreed to.
Section 12 agreed to.
SECTION 13.
Question proposed: "That section 13 stand part of the Bill."
I oppose section 13, root and branch. I will not rehearse all the arguments I made at the time, but I find it rather offensive that this is a disqualification section, without any reason being given, simply by virtue of one's profession. I find it unnecessarily discriminatory and rather insulting that the first body to be named in this series of discriminations is Seanad Éireann. Why on earth should we agree in this tame way to be disqualified from membership of this board? The same applies to all Members of the Oireachtas and to the European Parliament. If one looks at the people who promoted the ideas of this Bill – Deputy Gormley, Deputy Sargent and Patricia Mc Kenna, MEP, who all happen to be from the Green Party but they certainly have expertise in this area – I can see no good reason they should be removed from the possibility of participating in the board.
We did battle for weeks on a similar question in terms of the composition of the board of Trinity College, Dublin. We were told that they were quite entitled to put people on it and we were pointed to the example of the National University where it is quite a routine occurrence for the Government to appoint people, as well as to appoint members of county councils. There was strong support for this all around the House when we questioned it. There is a contradiction in ethos and I do not blame this Minister because I know this is a standard element, but I think we ought to challenge it and make a breakthrough.
Unfortunately, politicians are not held in high regard, some of it they have brought on themselves, but the media circus has been a factor. It is a tiny proportion of politicians who have brought discredit on the profession and I very much regret this but I do think it is an honourable calling and that we represent to the best of our ability the interests of our electorate and of the wider public. Why should that be a disqualification? The only reason I can see is as a kind of guilt trip on behalf of all administrations because of their venal and mercenary nominations to boards, but I hope for higher things from this Minister and from his colleagues in future.
Can I put on the record of this House the kind of company we are being lumped in with – those who are adjudicated bankrupt, those who make a composition or arrangement with creditors, in other words, refuse to pay the bill, those who are convicted or indicted by a court of competent jurisdiction and sentenced to a term of imprisonment, those who are disqualified or restricted from being a director in the meaning of the Companies Act, in other words, bankrupts, criminals, fraudsters, and Members of Seanad Éireann? How immensely flattering. Have my colleagues got the guts to stand with me today and say no, to put an end to this nonsense?
I hope the Minister may accept the amendment. If not, I will have to put it to a vote because I would like to see people coming in to vote that they are not fit to be members of this board because they regard it as perfectly all right to be categorised as bankrupts and swindlers. I do not find it flattering and I will vote against it, but I hope that if the Minister is not in a giving mood and is not capable of acceding to my request on this occasion, it will not prejudice him or put him in a bad mood so that he will not accept any future amendments just to punish us on this side of the House. The Minister is smiling broadly and shaking his head. I feel very strongly that this is a slur on the decent and honourable profession of politics.
Mr. Ryan
To a degree I can understand the point of these provisions, but like Senator Norris I am profoundly offended by the sloppiness of the legislative drafting procedure. This effectively states that there are four categories of people who cannot serve on boards, criminals, bankrupts, fraudsters and Members of the Houses of the Oireachtas. This is the first time I have seen members of local authorities included. I find it astonishing that an eminent academic in the area of energy conservation who happens to be a member of, let us say, the Passage West Town Commissioners, because he believes in making a contribution as an independent member to his local authority, would be exempt. This is a small town outside Cork where eminent academics from either my own place of work or UCC could be living. It could be a body as minor as that, or Youghal Urban District Council or Kinsale Urban District Council which are all places that people who are working in Cork could live.
I have no idea what conflict of interest could possibly arise between that level of membership of a local authority and board membership. Did somebody just think up something new? I believe that to a degree it is driven by a hostility to the idea of those who are elected persons being involved in any of these bodies. Where is the difficulty with a body which is accountable to the Minister and also to the Committee of Public Accounts and to a committee of the Oireachtas under section 23? There might be a problem with a Member of the Oireachtas being a member of this board as well as a member of the committee which investigates the body. I think there is a degree of separation of function there. The solution is to change the rules of the Houses so that Members are required to resign from any of the following bodies because of the danger of a perceived conflict of interests. Therefore the matter should be dealt with not by law but by the rules of the Houses.
It is gratuitously offensive to slip in a clause like this. It effectively puts us in the same boat as criminals and bankrupts. As long ago as the Regional Technical Colleges Bill, which contained the same requirement, I said that this standard clause is offensive. It has been slipped in because it is a handy way of getting something done.
That is one part of it. I have certain qualms about the rest of the section and although I also have qualms about Senator Norris's objections to it, I will support him. The part about local authority membership, however, is a nonsense. The exclusion of members of an urban district council from membership of the board will dissuade good people from getting involved in even the lowest level of politics. It sends out the signal that one cannot get involved with the technical side of things. In this regard I have in mind a body with which I have a connection, the clean technology centre in my place of work. If a similar body was set up on a national scale, none of my colleagues who have chosen to get involved in local politics could be appointed to its board. I cannot understand how membership of a local authority, particularly an urban district council, could conflict with membership of a board. There may be an overlap at county council level but I cannot think of one.
I rise in support of the comments of Senators Norris and Ryan. I have a query for the Minister regarding subsection (1) which begins:
Where a member of the Board
(a)is nominated as a member of Seanad Éireann,
(b) is elected as a member of either House of the Oireachtas. . .
I do not understand why nomination to Seanad Éireann debars, while one has to be elected to the other House.
Mr. Ryan
The Senator should be aware that it refers to Members of both Houses.There are 11 Seanad Members who would be excluded if it did not refer to nominated Members.
I understand. That explanation is satisfactory.
It would be popular to say that Members of the Oireachtas and members of local authorities should be eligible for inclusion in this board. I disagree, however, on that question. These appointments carry historical baggage. Members of local authorities were appointed to boards by successive Governments primarily on the basis of their party position.
It is very easy for Independent members to advocate that councillors, members of local authorities and Members of the Oireachtas be included but we must consider the legacy we have inherited. The Government is right to take this stance. It relieves the major parties, when in power, of the need to deal with internal pressures to nominate people to these boards. It is right for any Government to remove the possibility of local authority members or Members of the Oireachtas exerting such pressure. There could definitely be a conflict of interest between membership of the Oireachtas and membership of a board such as the Sustainable Energy Authority.
We may have been lumped alongside criminals, bankrupts and fraudsters, as Senators have pointed out, but it remains a convenient way of dealing with the matter. I remind Senators that the President of the United States is excluded from sitting on all boards—
Mr. Ryan
Does the Senator believe he should also be excluded from the Presidency?
—so why should Members of the Oireachtas be eligible to sit on boards? The Government is right. Its members are aware of the pressures exerted in the past from within their own organisations with regard to these appointments. My party is also conscious of the pressures that emanated from a variety of sources in relation to appointments to boards. The day has come to appoint members of boards strictly on merit. The media and the public demand as much and, as Oireachtas Members, we should step aside. We make the law governing what these boards may and may not do and on that basis alone, we should not sit on them.
I welcome that astonishing admission of gutlessness on the part of the political parties. That is not a sufficient reason because political parties—
Mr. Ryan
Senator Norris should restrain his scattergun because political parties take differing views on different matters.
I do not believe I should. I have never restrained my scattergun.
Mr. Ryan
He should concentrate his fire on Fine Gael or on Senator Caffrey and leave the rest of us alone.
It is extraordinary that we are expected to accept this categorisation simply because some political parties appear to be incapable of resisting the advances of junior members who seek to be inappropriately placed on boards. It is time they grew up, behaved like adults and refused these approaches on the basis that these persons are not qualified.
I look forward to a favourable response from the Minister and support from Senator Fitzgerald on the basis that if Fine Gael is supporting this, it cannot be as right as they thought.
As Senators have said, this section is standard—
Mr. Ryan
Most of it.
—and has been for as long as I can remember. That includes the provisions on local authorities. We are not breaking new ground. This format has been accepted by the Oireachtas for several years. The intention of the section is clear. It seeks to ensure that political neutrality is achieved on boards at all times. Examples of similar legislation where this section can be found are in the Acts to establish Enterprise Ireland, the National Disability Authority and the Radiological Protection Institute. There are others that do not come to mind.
As an Oireachtas Member, I empathise with the views expressed by Senators. I wish to put on the record my total agreement with Senator Norris's statement that the political profession is a noble calling. The vast majority of colleagues in these Houses whom I have had the privilege to know over many years are most honourable people of the highest integrity. I am not in a position, however, to accept this amendment.
I will not agree to this section. A vote in favour of it is a vote of no confidence in the integrity of politicians. It will be interesting to see who votes in favour of it.
Question put.
Tá
|
Bohan, Eddie.Bonner, Enda.Callanan, Peter.Cassidy, Donie.Chambers, Frank.Cox, Margaret.Cregan, John.Dardis, John.Farrell, Willie.Fitzgerald, Liam.Fitzgerald, Tom.Fitzpatrick, Dermot. |
Gibbons, Jim.Glennon, Jim.Glynn, Camillus.Kett, Tony.Lydon, Don.Mooney, Paschal.Moylan, Pat.O'Brien, Francis.Ó Fearghail, Seán.Ó Murchú, Labhrás.Ormonde, Ann.Quill, Máirín.Walsh, Jim. |
Níl
|
Costello, Joe.Henry, Mary.Norris, David. |
O'Meara, Kathleen.Quinn, Feargal.Ryan, Brendan. |
Tellers: Tá, Senators T. Fitzgerald and Gibbons; Níl, Senators Norris and Quinn.
Question declared carried.
Sections 14 and 15 agreed to.
SECTION 16.
Government amendment No. 10:
In page 11, lines 28 to 30, to delete subsection (9).
Section 16(9) defines superannuation. As the term "superannuation" is already defined in section 2, it is not necessary to repeat that definition in this section. I propose to delete subsection (9) of this section.
Amendment agreed to.
Section 16, as amended, agreed to.
Section 17 agreed to.
SECTION 18.
Question proposed: "That section 18 stand part of the Bill."
Mr. Ryan
Since I arrived in this House 20 years ago, which was probably the worst for you and me, I have been intrigued by the self-serving nature of legislation. This is the section dealing with prohibition on disclosure of information. It is intriguing that even though we now have one of the best freedom of information Acts in the democratic world, the draftsmen still put exactly the same section about disclosure of information into legislation as they used to do when we did not have freedom of information legislation. I would have thought that the culture of our system had changed sufficiently for a phraseology to be used on disclosure of information which reflected modern thinking.
The same phrases were used 20 years ago in legislation dealt with in my first year in this House. It is a standard provision which states that nothing shall be disclosed, that the definition of confidential information means that everything the board says is confidential. That definition means that an amendment must be made to the First Schedule of the Freedom of Information Act, to bale out of that catch-all phrase. There is no point in introducing primary legislation containing a clause like that and then inserting, as secondary legislation, an amendment to other primary legislation to the effect that this does not really mean what it appears to mean.
This section states that everything is confidential. The Freedom of Information Act maintains that nothing is confidential except a sensible list of exceptions. The Minister should talk to the draftsmen and ask them to draft legislation in terms of current institutional realities which are that the principle is that everything should be disclosed except where there is a reason to keep it secret.
This section states that everything shall be secret unless people have permission to disclose it and that the penalty on summary conviction is a fine of 2,000. This is the first Bill I have ever dealt with where euro amounts were stated first, with pound amounts in brackets. It is a sign of things to come. There will be a fine of 2,000 for disclosing information, most of which one will be able to legally disclose under the Freedom of Information Act. If we are talking about wasting the time of the Houses of the Oireachtas and of civil servants, it would have been much more sensible to state that subject to the provisions of the Freedom of Information Act, which applies to this body, the following shall apply.
There is, of course, confidential information, and we now have a definition of that. Confidential information is information which may not be disclosed under the terms of the Freedom of Information Act. There is case law in terms of the decisions of deciding officers and appeals officers and of the information commissioner. That section is out of date based on a principle which is now out of date and is in conflict with the spirit of the Freedom of Information Act. The Minister of State should agree to look at it and review it before Report Stage because it is meaningless legislation.
In preparing legislation people always work in conjunction with the Attorney General's office. This provision seeks to ensure that information submitted by companies or bodies in tendering for contracts is not revealed. That area of tendering is sacrosanct. Obviously, this body will be involved in a good deal of activity involving the tendering process. We would all concur to a lesser or greater extent with Senator Ryan in the generalisation he has made about the drafting of some of our legislation and that which is no longer relevant or is antiquated. I would like to think that the professionals who were involved in putting this together have it tight and effective at the end of the day. No doubt the sentiments expressed by Senator Ryan will go into the record and will be taken up in the preparation of future legislation which may meet with his aspirations in that regard.
Mr. Ryan
The idea that the Attorney General will be sweating over the reports of the Seanad to see what Senator Ryan thinks of his drafting skills—
The Senator is under-estimating the potency of his contribution.
Mr. Ryan
It is not so much me but the Attorney General. Section 18(4) states:
In this section "confidential information" includes information that is expressed by the Board or a committee of the Board, as the case may be, to be confidential. . . . . .
It is not confidential. The boards of public bodies no longer have that authority if they are covered by the Freedom of Information Act. They do not have that authority "as regards particular information or as regards information of a particular class or description". They do not have that authority if they are covered by the Freedom of Information Act. Their obligation under that Act is to ensure that information that is confidential under the provisions of the Freedom of Information Act, of which there are seven, is confidential. Irrespective of what arguments have arisen about the Freedom of Information Act I have not seen a single complaint that information was disclosed that should have been kept confidential. No harm has been done. There have been interesting little spats between Ministers and civil servants. A huge amount of information has been put into the public domain. The public understands much better what is happening, nobody has suffered and it has been a successful operation. What is the reason for putting into legislation forms of definition that are effectively contradictory of other legislation? Between now and Report Stage will the Minister of State ask the Attorney General why subsection (4) is included in light of the clear commitment that this authority should continue to be covered by the provisions of the Freedom of Information Act? That subsection is entirely meaningless.
I will certainly put forward the questions the Senator has raised.
Question put and declared carried.
Sections 19 to 21, inclusive, agreed to.
NEW SECTION.
Government amendment No. 11:
In page 14, before section 22, to insert the following new section:
"22.–The Authority may, for the purpose of providing for current or capital expenditure, from time to time, borrow money (whether on the security of the assets of the Authority or otherwise), including money in a currency other than the currency of the State, subject to the consent of the Minister and the Minister for Finance and to such conditions as they may specify.
I have decided it is necessary for the new authority to have the power to borrow money subject to the usual consent from the Minister and the Minister for Finance. I am promoting this amendment to that effect. It would be beneficial for the authority to be able to borrow money on a temporary basis to ensure there are no delays in implementing its functions. Any borrowing, therefore, would be for short-term current expenditure.
Amendment agreed to.
SECTION 22.
Amendments Nos. 12 and 13 not moved.
Amendments Nos. 14 and 15 are related and may be discussed together by agreement.
I move amendment No. 14:
In page 14, lines 32 to 35, to delete subsection (5).
I have been asked to move this amendment. I do so enthusiastically. I am sure the House will regret as I do that Senator O'Toole is unable to be present because of the death of his father. The funeral is taking place today. He deserves credit for this amendment. I had asked him to second an amendment of mine. Being a very efficient speed reader he spotted subsection (5) of section 22, an extraordinary provision which states:
In the performance of his or her duties under this section, the Chief Executive shall not question or express an opinion on the merits of any policy of the Government or a Minister of the Government or on the merits of the objectives of such a policy.
It is an extraordinarily wide prohibition. The chief executive shall not express any opinion. It does not say in public, on the broadcast media, except he shall not express any opinion. What kind of a yes-man or a yes-woman would be involved if they did not express an opinion? Surely it is a moral requirement to express an opinion at least to the Minister. It seems to be very loosely drafted. It also seems to be a most astonishing restriction on freedom of opinion. I do not think it is necessary.
Senator Ryan drew attention to an earlier section where the disclosure of sensitive information is prohibited already. That is illegal. The Minister appointed this person and it suggests a disastrous lack of confidence in the Minister's own capacity to choose a person of reasonable discretion. This is a matter the Minister should reconsider.
The Minister said he would not disappoint and that he would accept amendments. He has only a Government amendment left and I would not expect him to do anything other than to accept that. I hope the Government will accept this amendment and pending the Minister's remarks, I will resist the temptation to go into the kind of rhetoric we had. This would be no harm because Senator O'Toole did say this was almost Nazi style. I would not go quite as far as that; Stalinist would be as far as I would go.
It is certainly something that should be taken out of the Bill and, with the expert advice he has been given, I hope the Minister will find it in his heart to accept these two amendments. The second amendment is merely a technical one and I am very grateful to the staff of the House for drawing my attention to it. It is consequent on the first one and it would be rather foolish not to remove it in both instances.
Mr. Ryan
Senator Norris has said much of what I wanted to cover. This has come up before. A chief executive of this authority could be before the Committee of Public Accounts trying to explain why money was not being spent to the satisfaction of the Comptroller and Auditor General or why proper accounts were not kept having been refused permission to appoint someone to a critical position to keep accounts because the Government had an embargo on appointments. In such a case, before the primary constitutional committee, the chief executive's job would be to cover up for the Government. This is a backlash by people who do not like the fact that committees have made life difficult for them and are beginning to have teeth. They want to reduce the degree of accountability to committees.
I failed to spot the repetition in the following section and I am grateful to Senators Norris and O'Toole for submitting amendment No. 15. This section is even more wide ranging. I am a member of the Joint Committee on the Environment and Local Government, which obviously has an environmental brief. If we want to know what is happening on sustainable energy, we would invite the authority to appear before us. If we are trying to determine whether public policy in this area is successful, appropriate or how it compares with other countries, the person who is best qualified to tell us cannot do so because the Government has said he may not express an opinion on the merits or objectives of any policy of the Government or of a Minister. He cannot outline to the Joint Committee on the Environment and Local Government, either in private or in public, what he thinks should be done because that would be an implied criticism. His job is to say the Government is wonderful. That is the only thing the authority can say to an Oireachtas committee.
It is not the first time this has been put in but it is a new idea. It is the backlash—
It is a new idea, but there is precedent in other Acts.
Mr. Ryan
However, it is quite new.
I support Senator Norris. What is the point of having people with expertise in these positions unless they are able to express their opinion on policy? I do not believe it is a new idea. In the health services, we have had to labour under similar restrictions. For example, hospital consultants have been issued with warnings by hospital management and health board managers de temps en temps that they are not to give their opinions on policy or what they see as the lack of services. Mercifully, to date, we have resisted and feel that the ethical obligations to our patients are far more important. I would not like to see this idea take hold and if we have people with expertise in various positions, it is most important that they express their opinions.
Since I came into this House, I have always looked at every Bill coming through to see if it would incorporate what is called good management practice. The first time I saw this prohibition in such strong virulent words was when the regional health authorities were set up about 18 months ago. There is a precedent for it but one against which we fought.
It is not healthy for the senior management of an organisation to be unable to question decisions or policy. The argument against this is that the owners or board of the organisation should define the policy and tell the chief executive that it is his job to make sure it works. It is much more healthy to allow for open debate and let the authority answer to Oireachtas committees. It is not good or even normal management practice such as we might expect in the 21st century. It might have been acceptable 100 years ago when management instructed people to do what they were told without questioning it. If we are to have a strong organisation, there needs to be open debate.
I urge the Minister to consider amendments Nos. 14 and 15.
As the Senators have said, I also regret that Senator O'Toole is not present. I know that he has had a bereavement and I register my condolences to him on his great loss.
I sincerely thank the Senators for their careful consideration of this provision. I was very mindful that it had been raised quite vehemently on Second Stage. Senator Caffrey had also raised it with me privately and I appreciated that. I strongly disagree that there is any attempt inherent in the Bill to gag the chief executive of the new sustainable energy authority.
The similar provisions in both sections 22 and 23 relate only to the appearance of the chief executive before Oireachtas committees. The provisions do not relate to his or her duties in carrying out the activities or management of the new authority or to anything the chief executive might wish to say about Government policy or about a Minister's policy in any other form. Section 22(5) only relates to the chief executive appearing before a Dáil committee in accordance with section 22(4). Likewise, section 23(6) relates only to appearances of the chief executive before an Oireachtas committee.
The provision was essentially intended as a protection for the chief executive against being drawn into giving an opinion on Government policy in the political arena and thereby becoming politicised. There are precedents for such protection. In particular, I was guided by the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act, 1997, which provides that a civil servant, a member of the Defence Forces or the Garda Síochána shall not, while giving evidence to an Oireachtas committee, question or express an opinion about Government policy or that of a Minister.
Similarly, in the Comptroller and Auditor General (Amendment) Act, 1993, an accounting officer, normally a secretary general of a Department, is restrained from questioning or expressing an opinion on Government policy. There are also instances where the Oireachtas has enacted provisions similar to this legislation in establishing semi-State bodies. In the Employment Equality Act, 1998, the chief executive officer is required not to question or express an opinion on Government policy, when appearing before an Oireachtas committee.
I thought it appropriate to set out the rationale for putting this provision in place in the first instance. I appreciate the manner in which this matter was raised and the fact that it was also raised privately. This showed the depth of opinion and conviction in the House in relation to this provision. In deference to that well-put conviction, I am happy to accept the two amendments.
I thank the Minister of State for accepting our amendments. With regard to any difficulty for a senior official, he or she can decline to give an opinion when questioned before an Oireachtas committee. The committee cannot compel a person to give an opinion. The individual has his or her rights. It would be wrong to exclude persons from giving opinions to an Oireachtas committee when they might well wish to do so. The Minister of State gave a military example. The military is organised in a particular manner whereby orders are taken without question and a subordinate does not express an opinion.
I am grateful to the Minister of State for accepting the amendments from Senator O'Toole and myself. This shows how, with a co-operative Minister, this House can work positively for the improvement of legislation.
I also agree that the Bill will be greatly improved by those amendments. I compliment the Minister of State for listening intently to the debate and for accepting the amendments.
Amendment agreed to.
Section 22, as amended, agreed to.
SECTION 23.
I move amendment No. 15:
In page 15, lines 18 to 21, to delete subsection (6)
Amendment agreed to.
Section 23, as amended, agreed to.
Section 24 agreed to.
SECTION 25.
Question proposed: "That section 25 stand part of the Bill."
Mr. Ryan
These are standard provisions, but what happens if a directive is very expensive? Has the authority any come-back if the Minister gives a directive which involves substantial expenditure? Is there any way in which the authority can be protected from a future Minister? Where a directive involves major expenditure, the Minister should ultimately be responsible for that cost, not the authority. There have been past instances of directives being given to State agencies which proved to be enormously expensive. I accept the principle that a body which is an agent of the State ought to be subject to Government direction, in a transparent, open and accountable way. I do not accept that the Minister should simply be able to give a directive and not take some of the consequences if that directive causes problems, particularly of a financial kind.
I suppose he who pays the piper can call the tune. The Minister must also provide the funding for the authority. That rationale can be followed through under section 21.
Mr. Ryan
At least the chief executive can now complain to the Committee of Public Accounts.
Question put and agreed to.
SECTION 26.
Question proposed: "That section 26 stand part of the Bill."
Mr. Ryan
With regard to the provision for public bodies to accept donations, will the Minister of State say if any public body has ever received a gift? This is a standard provision in legislation setting up public bodies. I suspect that very few such gifts are received.
Níl fhios agam.
Question put and agreed to.
NEW SECTION.
Government amendment No 16:
In page 16, before section 27, to insert the following new section:
27.–The Authority may, from time to time, as it considers necessary for the performance of its functions–
(a)enter into contracts with persons or bodies, and
(b)engage consultants or advisers, and any sums thereby payable by the Authority to such persons, bodies, consultants or advisers shall be paid by the Authority out of moneys at its disposal.".
This amendment to section 27, in effect, amalgamates sections 27 and 28 of the Bill. What I am proposing is to include a provision in section 27 which will allow the authority to enter into contracts with persons or bodies to carry out such activities related to the performance of its functions as it considers necessary. The section also provides that the authority could engage consultants and advisers for the purpose of assisting it in the performance of its functions.
Section 28 provides that the authority could enter into contracts to perform such of its functions as it considers necessary. It has been properly represented to me that the authority would not propose to contract out any of its functions, while on the other hand it may wish to enter into contracts for the carrying out of activities related to the performance of its functions. The acceptance of my amendment obviates the need for section 28 of the Bill and, accordingly, I am proposing its deletion.
I believe my amendment clarifies the position and allows the authority to enter into contracts, which it may need to do in a range of areas related to its functions, such as the provision of information and the overseeing of business energy management services in public sector offices and local energy management agencies.
Amendment agreed to.
Sections 27 and 28 deleted.
Section 29 agreed to.
TITLE.
Mr. Ryan
I move amendment No. 17:
In page 3, line 6, after "as" to insert "FUINNEAMH INMHARTHANA ÉIREANN – ÚDARÁS FUINNIMH INMHARTHANA NA hÉIREANN OR IN THE ENGLISH LANGUAGE".
Amendment agreed to.
Title, as amended, agreed to.
Bill reported with amendments.
When it is it proposed to take next Stage?
Now.
Mr. Ryan
If it has been agreed on the Order of Business, I do not oppose it, but I object on principle to all Stages of a Bill being taken on the same day.
It was agreed on the Order of Business.
Mr. Ryan
I am disappointed because there were issues that the Minister said he would look at. Judging by the list of Seanad Bills on the Dáil Order Paper for the last three years, he might have time to consider further amendments.
Question proposed: "That the Bill do now pass."
Mr. Ryan
I thank the Minister for responding to amendments from this side, which were suggested in the proper spirit. It was an interesting debate. I wish the new body well. I apologise to the Cathaoirleach for leaving him with the pronunciation problems of the Title. I managed to move it without saying it aloud. I compliment the Minister for dealing with the Bill in a way that made the job pleasant.
The Minister's heart is in the Bill's objective. His aim to ensure that it achieves what it is meant to do is evidenced by his accepting amendments in a spirit which we admire.
I endorse what was said and commend the Minister of State for the imaginative way in which he looked at sustainable energy and the terms and structures of the new agency. I commend him also for the Green Paper. It is lauded widely and loudly throughout Europe. Many acknowledge it as the bible of sustainable energy.
I also thank the Minister for the Bill's smooth passage and his conciliatory attitude towards the amendments, especially the more important ones. I hope that the new agency will live up to the high promise embodied in the legislation and will be a success.
Thank you, a Chathaoirligh, and all the Senators for the courtesy extended during the debate. As Senators said, the Bill is better for its processing through this House. I also thank my officials for their expertise and important behind the scenes role.
Question put and agreed to.
Sitting suspended at 2.50 p.m. and resumed at 3.30 p.m.