I welcome the Minister. I had made my point with regard to corporate governance and will not repeat myself. The Minister understood the point made.
Digital Hub Development Agency Bill, 2002: Committee Stage (Resumed).
SECTION 16.
Debate resumed on amendment No. 18:
In page 12, after line 41, to insert the following new subsection:
"(6) The chairperson of the Agency shall not exercise the functions of the chief executive, except in exceptional circumstances on a temporary basis which shall not exceed a period of 3 months.".
–(Senator Quinn).
Section 19(8) of the Bill provides that in the absence of the chief executive, his or her functions may be performed by a member of staff so designated by the agency. There is no provision whereby the chairperson would perform the functions of the chief executive and, therefore, the amendment proposed is not required.
On a point of clarification, pending the establishment of the agency the functions of the chairperson and the chief executive have already been separated. Therefore, I do not propose to accept the amendment. The former chairman, Mr. Paddy Teahon, acted as chief executive and the understanding was that the two functions would be separated in this Bill. That is the rationale behind the section. The proposal that a member of staff would perform the functions of the chief executive is preferable to the chairperson standing in. This is to keep the governance of the executive and board at arm's length. That is how we should proceed.
I thank the Minister and understand the point he makes. I made my point because of what had happened in the past. I wanted to make sure a standard had not been set and to establish that, with State companies, a chairperson who is also chief executive would not be appointed, as has previously happened. That is a standard that should be avoided and I accept the Minister has achieved that on this occasion. I am happy to withdraw the amendment.
I respect what the Minister has said. I was a Member of the Committee of Public Accounts and witnessed a classic example of what can happen where a chairperson and chief executive are the same person. Both functions must be divorced.
Amendment, by leave, withdrawn.
Section 16 agreed to.
SECTION 17.
Amendment No. 20 is an alternative to amendment No. 19 and amendment No. 21 is related. Amendments Nos. 19, 20 and 21 may be taken together, by agreement. Is that agreed? Agreed.
I move amendment No. 19:
In page 13, subsection (3), line 6, to delete "6" and substitute "5".
This is a follow-up to my earlier amendments about the size of the board. With a board of 12, which is my preferred number, a quorum of six is too large. Five is an adequate number for a board of 14. It is often the case that, the larger the membership, the more difficult it is to assemble a quorum. We have discovered that in these Houses on occasion. If we are to change the size of the board, we should consider changing the size of the quorum. Even if the size of the board is not changed, a quorum of five is sufficient.
The quorum proposed is roughly one third of the membership and I and my officials consider it the best arrangement that could be arrived at. It is not a lot to ask that at least one third of the membership be available.
On amendment No. 21 relating to tele-conferencing, the existing provision does not preclude the holding of a meeting by such means providing all statutory conditions relating to the holding of meetings are satisfied. I acknowledge the spirit in which the Senator tabled the amendment, especially given that some members of the agency are resident or operate outside the State. This use of technology should be encouraged to save expense, but it is not necessary to provide specifically for tele-conferencing in the Bill.
I understand the Minister's point and will not press the amendment.
On the tele-conferencing issue, the amendment states:
(7) For the avoidance of doubt, any meeting of the Agency which is held in whole or in part by means of tele-conferencing shall be a valid meeting.
As will be gathered from the inclusion of the phrase, "For the avoidance of doubt", I do not suggest and the Minister is correct to say that the amendment is necessary to validate meetings which are held using tele-conferencing. I have used it once or twice for meetings and I understand the best legal advice considers that it is not an issue.
I tabled the amendment because its inclusion gives a suitable digital flavour to the Bill. It shows that we expect the board to make full use of the technology available to it. I will not go to the stake on this, but it would be a nice touch to add it to the Bill. I understand the Minister's point and happily withdraw the amendment on the basis of having made the point.
Amendment, by leave, withdrawn.
Amendments Nos. 20 and 21 not moved.
Section 17 agreed to.
Sections 18 to 21, inclusive, agreed to.
SECTION 22.
Amendments Nos. 22 and 23 are cognate and may be discussed together by agreement.
I move amendment No. 22:
In page 15, subsection (1)(b), line 29, after “Oireachtas” to insert “or of a local authority”.
My amendment will probably shock some of my colleagues in the House. Our usual practice when faced with sections such as this in legislation establishing State companies is to argue against the ban on Oireachtas Members being members of the board. On this occasion, I propose for a number of reasons to extend the ban to include local authority members. I fail to see the rationale for distinguishing between politicians at national or EU level and a local representative. A better argument could be made for excluding the local politician as he or she is more likely to be affected by local aspects of something going through. We should remember that the most blatant examples of corruption unveiled in recent times were at local rather than national level. We should consider this in regard to future State boards. It has particular relevance to this Bill.
This is a project of national importance which will take place in a local framework in one particular area of the city. This is reflected in the requirement for the board of the agency to include the Dublin city manager, or his or her representative. That is surely all the more reason, especially because of the property implications of the agency's remit, that we formally exclude from membership any elected member of the local authority. I imagine there will be an outcry from local authority members at this suggestion. In this case, taking into account the debate we had last week, it seems important that we exclude local authority members from the board.
The Minister may say it is not his intention to do so, but I believe that is how it should be. Recent developments show that this would be a good amendment to any Bill setting up a State agency. In this case we have a double reason for including it. I urge the Minister to give it serious consideration.
I disagree with Senator Quinn. I have a problem with the way we try to exclude publicly elected members from a number of bodies. They are democratically elected. I am concerned at the trend to cut them out from this, that and the other, specifically this area. During the debate on Second Stage we learned of the amount of dialogue that has taken place between the Department, the local authority and local communities. Senator Quinn's amendment would prohibit one of the elected representatives of those communities from being a member of this body. It is important that somebody who has a feel for the local community and was elected by it should have the opportunity to be included.
When the Minister was clarifying the composition of the board, he mentioned a lot of international heavyweights. While I am not in favour of excluding local authority members, it is important to strike a balance. I recognise that to set up a body such as this we must have an international component. Therefore, there should be a limiting restriction on a local authority member. Let me give one example.
As a Member of the Dáil, I supported the merger of the Shannon and Foynes harbour boards into the Shannon-Foynes Port Authority. The Minister said at the time that it would be a new dawn for the estuary and that there would be individuals with appropriate marine and business experience on the board. This is a classic example of how things can go wrong. On the board of 12 there are six local authority members, all Fianna Fáil, an imbalance which is crazy and wrong. I say this straight out. I made the same point in my own council chambers during the week to the annoyance of many of the Fianna Fáil members. If the Minister wanted to set up a board with credibility, it was important to recognise that there should be a huge business component. While I recognise the local authority's familiarity with the area, it is overboard to have local authority members comprise 50% of the board in order to accommodate the different counties that merged in the estuary. This classic example shows the total imbalance in regard to local authority representation. While I do not favour excluding local authority members, a balance should be struck.
In this case, even if there is a local authority member on the board, common sense should prevail. It is such an innovative project that it is necessary to take individuals from the mainstream of business with international experience in order to give credibility to the board.
This topic will always engender an interesting debate, particularly in the Seanad. I cannot put it much better than Senator Kenneally. Now that I am on the other side of the fence as a Minister setting up agencies such as this, I always ask my officials why are Deputies and Senators restricted from being on these boards. I accept there are boards which should not have as members Members of the Oireachtas. Equally there are boards which could be more successful with representation from the Oireachtas.
I could rise to the bait of Senator Finucane in relation to the Foynes issue. After the last day of the last Government, during the interregnum, all the vacancies on any board in the gift of my Department were stuffed with people who were quite obviously from the political parties. I am not saying they are not entitled to membership. By and large, the people who were appointed were excellent. One such person has been resurrected into the political domain, not in Senator Finucane's party but in another party, following a recent leadership contest. He was obviously rewarded then and is now back in the fold.
I do not accept this amendment because the model we are following is the same one used for the Dublin Docklands Development Act. At the time I remember looking at that debate about the whole development of the docklands from a distance. Members of the local community were pretty annoyed at what they felt was the lack of consultation, etc. I am not critical of what happened there. There was subsequently significant consultation at the instigation of many of the local representatives both from the Oireachtas and the local authority. We have learnt about the required consultation from what happened in the Dublin docklands.
As I said on the previous occasion we discussed the Committee Stage of this Bill, there has been substantial consultation with the local community groups. Senator Quinn is right, this is a major national project and has ramifications for us in the future, but it is also a particular local initiative and the local authority members from that locality may need to be on sub-committees of the board, etc. I would not like to exclude them nor would I like to see a total imbalance on the board in relation to local authority members because that would cause a difficulty. I appreciate there is a tendency to keep political balance when local authorities are involved and that could also cause a problem. I would rather follow the precedent that exists in the Dublin Docklands Development Act and not exclude local representation. I believe that is a good model.
I understand the Minister's point and the difficulty he would have in accepting this amendment. I made my point earlier and it was supported to a great extent by Senator Finucane's concern over what had happened in the past. This is a national venture but it is based locally. We have had examples where local authorities have allegedly been influenced by something other than the best interests of the objective itself.
As Senator Finucane said, I am concerned they will often be party political appointments made in order to balance the parties. The Minister also pointed out that if a person from one party is there then somebody else must be appointed. I tabled the amendment in an effort to avoid both difficulties. I will not press it, but this should be taken into account in the future.
Amendment, by leave, withdrawn.
Amendment No. 23 not moved.
Section 22 agreed to.
SECTION 23.
I move amendment No. 24:
In page 16, subsection (1), line 14, after "Minister" to insert "and in any case within 3 months of the establishment day,".
This is another example of my wanting to speed up the process. This is not a green field project; it has been in gestation for some time. Much work has been done – for which I congratulate the Minister – but three months seems more than adequate to draw up a code of conduct. The Minister might be willing to accept this amendment because it does not seem that any longer period would be necessary.
I understand Senator Quinn's point and I try to cut delays and red tape in my Department whenever possible but my officials strongly suggest that while work has been done to date, there is no staff for the actual running of the agency. We envisage that more people will have to be involved. In that context, it would be better to consult with the staff interests, the unions and other representatives and my officials say that a timeframe of three months would be a bit tight. They would like to do it as quickly as possible but if it were written into the legislation, it would hamstring them. I suggest that the Senator withdraw the amendment but I assure him that we will endeavour to bring this forward as quickly as possible.
Amendment, by leave, withdrawn.
Amendment No. 25 not moved.
Section 23 agreed to.
SECTION 24.
Amendment No. 26 not moved.
Amendments Nos. 27 and 28 are related and may be taken together by agreement. Is that agreed? Agreed.
I move amendment No. 27:
In page 17, paragraph (e), line 28, to delete "(in excess of €650)".
I suggest that we delete the words because it seems totally inappropriate to have an exemption limit for money gifts as there is no limit specified for other types of gifts. I regard the acceptance of money as a gift, at any level, in a business situation as being prima facie questionable. The notion that we should treat money gifts of €500 or €600 as beneath our notice is incredible. I urge the Minister to accept this amendment. I have been happy to withdraw other amendments because the Minister has clearly listened and understood the case and has explained why he wished to maintain the Bill unchanged. I can understand visitors presenting gifts of a meal, a token or a souvenir but a money gift is unacceptable and it is incredible that we would say it is allowable to accept €500.
I apologise to the Minister for my late arrival. The reason is mundane – the train from Cork was an hour late for the first time in about five years. I am sure the Minister did not miss me and no discourtesy was intended in any case.
I agree with Senator Quinn. However, a number of issues need to be addressed, the first of which is the one he has raised. The second is the value of the proprietary interest in any business. Given the nature of the dot com business, the value of a company can shoot up and down quite rapidly. I am concerned that €20,000 is a fairly substantial interest below which no declaration is needed. I suggest that even a shelf company which could become a beneficiary is a sufficiently serious matter to require a declaration of interest. I will return to other issues later on the section.
In my view, to require a declaration of interest only where a member of the company has an interest to the value of €20,000 or more is exceedingly generous. If people are getting involved in something of this nature, the spirit of the legislation should be that they stay away from any businesses which would benefit from its activities. The letter of the law might be more difficult but it should state that the value of their involvement must be close to nominal. Currently there is a debate as to whether €4,000 is a nominal or significant sum of money but I am quite satisfied that €20,000 is a very significant sum of money. Indeed, I regard €1,000 as a significant sum and I am not happy that €20,000 should be the limit below which an interest need not be declared.
I have some sympathy with Senator Quinn's comments on amendment No. 27 and perhaps there is some confusion due to the wording of the text. I always understood that, in the case of somebody going abroad, gifts of holidays, transport, etc. in excess of £500, as it was, or €650 now, would have to be declared. I was not aware that one could accept a gift up to that amount in cash and I am not sure if that is what is intended now. Perhaps the matter can be looked at again in the context of other legislation.
I fully support the sentiments already expressed, particularly in relation to an interest to the value of €20,000 or more. I consider that figure totally excessive.
The monetary limits specified in the Bill in relation to gifts and the monetary limits for ownership are the same as the limits in section 28 of the Transport (Railway Infrastructure) Act, 2001. I am convinced by some of the arguments made by Senators and I will look at it between now and Report Stage. If memory serves me correctly, the limit in relation to gifts in excess of €650 is analogous to the ethics in public office legislation and I am not sure if money was included in that. However, I fully agree with Senator Quinn that, regardless of the amount, money should not be accepted in any shape or form and that has always been my view in political life.
In relation to ownership of a proprietary interest in any business, I agree with Senator Ryan. A business related to the functions of the agency could have a book value well below €20,000 and still give the impression of being merely a shelf company but still have a huge turnover. I am concerned that the €20,000 limit is rather high and I will look at it again, though I cannot say I will come down to €1,000.
I thank the Minister for his comments and I am happy to withdraw the amendment pending the outcome of his further consideration. I share Senator Kenneally's concern in relation to the wording of the Bill on this point. It refers to "gifts of travel, holidays, transport, money (in excess of €650) or other benefits.". As I interpret it, the €650 applies only to money and I feel sure that is not the intention. The drafting should certainly be reviewed.
On reading it again, I believe the Senator is correct. The "other benefits" should also be included under "in excess of €650". I will look at it again.
Amendment, by leave, withdrawn.
Amendments Nos. 28 and 29 not moved.
Question proposed: "That section 24 stand part of the Bill."
With regard to the provision that "the agency shall publish continuously by electronic means", I wish to touch on the point I made on amendment No. 6 about the difference between "compelling" and "enabling". Although the Minister has agreed to consider this matter further before Report Stage, I am concerned that I may not have made the case strongly enough. I am not seeking an amendment which simply states that publication by electronic means will be enabled. It is essential that publication by electronic means actually takes place. I hope the Minister will take full account of that in considering the matter further.
While I have advocated publication by electronic means in the context of other Bills, it is particularly essential in this Bill. The publication of gifts is one example. If published, but not by electronic means, it could mean that a gift accepted in January would not be published until six months after the end of the year in the annual accounts, or 18 months after the event. The use of electronic means would facilitate immediate publication. Rather than simply enabling publication in that form, it should be an obligatory requirement so that it is readily accessible on the Internet
I note the Senator's comments but we will have to wait and see what we come up with on Report Stage. However, as the Senator as a businessman will appreciate, I do not wish to over-regulate a body by insisting on electronic publication of every document. It could tie up people in difficulties which we might not envisage now if we were to be unduly prescriptive in the Bill. I will bear the Senator's comments in mind but I am concerned to avoid excessive regulation of business and general activity.
I appreciate the Minister's response on the last two amendments. Is he satisfied that directors of an agency such as this should be allowed to accept gifts of travel or holidays etc.? It is not very seemly, even if it is legally correct, for people to be brought on trips or holidays by companies connected with the business related to the functions of the agency. The proper ethos of an agency like this would indicate that the director and other employees should simply refuse. A declaration of interest is an acceptable middle road, but it is not seemly for directors to go on trips sponsored by commercial interests. I ask the Minister whether they should be discouraged.
I made my comments earlier about the receipt of money and I agree with the Senator's sentiments. I will look at it again on Report Stage. In a body like this, where there are fairly major commercial interests, not only is it unseemly but if I were a director I would not accept or become involved. I will look at it again but, in all fairness, this is the standard which has been accepted in previous legislation. However, in the climate of absolute political correctness we cannot accept any gift. This is probably a good thing, not only for politicians but also for agencies. To a certain extent it might be a help not to include it for them as it can be taken to extremes. If someone on a delegation is given across the table a pen with the company's name on it, that would be a gift under the legislation and would have to be declared.
There must be a middle course, although I take the Senator's point with regard to travel, holiday and transport. However, if there was a plane going which was owned by some business person, such as Senator Quinn – I do not know if he owns a plane – and a lift was offered to save someone having to go through the airport, that would be prohibited, which is somewhat unfair. We have to steer a middle course.
There is almost a fear of electronic publication. It is so much cheaper, easier and more efficient. It takes no time at all. My children use this form of communication so much more easily than writing letters. The Minister said he does not want restrict it too much but I would like the Minister to look at electronic publication. I look forward to his reply. I would love to see it compelled rather than enabled in some cases and section 24 is one of these.
Question put and agreed to.
SECTION 25.
Question proposed: "That section 25 stand part of the Bill."
I ask the Minister about subsection (4), which provides that where the Minister is satisfied that a member of the agency has failed to comply with subsection (1), the declaration of interest and the disclosure of a possible conflict of interest by a member, he may remove that member from office or take such other action as he considers appropriate. Why is there discretion? If a member of an agency such as this deliberately fails to make a disclosure the penalty should be dismissal at least.
I accept that there may be occasional genuine errors where people with complicated interlocking businesses may not know of an interest if something comes up at short notice. Nevertheless, where the Minister is satisfied that someone knew of an interest and did not disclose it there should be no discretion. The person should be removed from the agency. I would like the Minister's views.
The Senator has answered his own point. There would need to be discretion if the indiscretion was minor. It is a case of not being over-prescriptive in legislation. There could be a very unfair situation where someone, inadvertently or due to infirmity, may have omitted to make a declaration. The Minister would act on the recommendation of officials with regard to the seriousness of the incident. There is legal precedent for this in other legislation. There should be discretion where the penalties are punitive and could be publicly punitive for what might have been a minor indiscretion.
Question put and agreed to.
SECTION 26.
Question proposed: "That section 26 stand part of the Bill."
Why does the Minister think that there is no need for a definition of an interest, similar to that in section 24, which refers to the interests of a member of the staff? I know it is somewhat different but the definition of "interest" in section 24 applies only to that section. Why does a similar definition not apply here? Perhaps it is an oversight which can be remedied on Report Stage.
This is a point which could be discussed on Report Stage.
I am not trying to be awkward.
No, I get the Senator's point. He is saying the word "interest" has not been defined in section 26 although it is defined in section 24. People are conscious that it might apply more to board members than members of staff. I am not sure if that is the case. It can be examined on Report Stage. The definition of interest in section 24 may not be exhaustive but it is being used as a precedent.
We can look at it. We can never proscribe downright evil. If people want to find a way around something they will find it.
Question put and agreed to.
SECTION 27.
Government amendment No. 30:
In page 20, lines 11 to 14, to delete subsection (4) and substitute the following new subsection:
"(4) In this section ‘confidential information' includes–
(a) information that is expressed by the Agency or the Minister to be confidential either as regards particular information or as regards information of a particular class or description,
(b) commercial information in relation to contractor, consultants, providers of finance, or any other person, and
(c) proposals of a commercial nature or tenders submitted to the Agency by contractors, consultants, or any other person."
This is a drafting amendment to ensure that this provision is as detailed as possible, in line with the current drafting procedures for this aspect of corporate governance. It is modelled on a similar provision in the Transport (Railway Infrastructure) Act, 2001.
I have no desire to be confrontational. The difference I see is that the existing clause prohibits the disclosure of information deemed by the agency to be confidential, whereas this amendment covers information deemed either by the agency or the Minister to be confidential. I am happy that the Minister is reluctant to be too prescriptive, but it seems extraordinarily prescriptive not to allow the agency to decide what is or is not confidential, which will be the effect of the amendment. One could believe the amendment has been introduced to benefit a Minister who wishes to interfere politically and not have the matter covered by disclosure through the Freedom of Information Act, 1997, although I do not suggest that this is true of the Minister. My reading of the amendment may be incorrect, but it appears that the essence of the change is to include the Minister in the list of those who can determine what is to be seen as confidential information.
We are using the precedent of the Transport (Railway Infrastructure) Act, 2001, in this regard. The Minister has been included because there may be circumstances in which information about leaks comes to the attention of the Minister, not the agency. I can vouch for the fact that this happens: when I was Minister for Social, Community and Family Affairs, I became aware that a member of staff was leaking confidential information to the public. If the Minister was aware of the fact that information had been divulged, but the provision I propose was not specifically mentioned in the Bill, he or she would be unable to intervene. It is important that we make this provision.
In relation to section 27, confidential information—
An Leas-Chathaoirleach
I have to dispose of the amendment before the Senator can discuss the section.
I have to stray on to the section to a small extent to explain one of the problems I have with the amendment.
An Leas-Chathaoirleach
The Senator can speak on the section when we have dealt with amendment No. 30.
The Chair will have to bear with me before he decides whether I am misbehaving, as the point I wish to make relates to both the amendment and the section. Section 27 states, "a person shall not, without the consent of the Agency, disclose confidential information." As only the agency can decide what may be disclosed, it is surely illogical to allow the agency and the Minister to determine the definition of confidential information. If the Minister declares that something is confidential, the agency may still decide to disclose it if it wishes. In such an instance, the idea of the Minister acting as a kind of second protection is meaningless. The amendment is unnecessary if the agency and the Minister are not both mentioned in section 27(1).
I understand the point being made by the Senator. If confidential information was to be made available with the consent of the agency, the consent of the Minister would also have to be acquired. The Minister's opinion, according to the amendment, will be sought in relation to "information that is expressed by the Agency or the Minister to be confidential," but his consent is not needed. I put it to the Senator that opinion and consent are two different matters. The Minister may be involved in making a report to the agency and the agency may decide that while the information is confidential, it does not mind that it is divulged. It is possible to parse and analyse this amendment to too great an extent. The intention of the section is to ensure confidential information from the agency is not leaked in a way that is detrimental to the interests of the agency. Obviously, the Minister will have an input in deciding whether leaked confidential information is commercially sensitive or important in a similar manner. The Minister has to be involved in the decision. In a way, the Senator is asking me to be more prescriptive.
No, I am—
The Senator seems to be suggesting that I should have the dead hand in any information that may possibly be released from an agency, but I do not think the Minister should be involved in the day-to-day dissemination of information from an agency.
My understanding of company law suggests that it is extraordinary to allow a company's shareholders, as distinct from its directors, to have so much influence. The agency, which in this instance can be compared to the directors, is supposed to function commercially. I repeat that I think this is an unnecessary amendment. It is a product of the Office of the Chief Parliamentary Counsel, which tends to try to encompass everything. I do not intend to call a vote on this matter, but suggest that the Minister should re-examine it before Report Stage. I am not convinced that the amendment is necessary. I do not think that the Minister thinks it is necessary either, but that is a separate issue.
Amendment agreed to.
Question proposed: "That section 27, as amended, stand part of the Bill."
The parameters of confidential information and to whom the provisions of this section should apply are clearly defined in the Bill. There have been many cases of leaking information. As this is new legislation and the parameters are defined, I wonder if it would be worthwhile notifying the officials of all State bodies about their responsibilities vis-à-vis confidential information. State boards which have worker directors encounter difficulties when decisions are taken about what can or cannot be divulged, as such decisions have long-term implications for members of the board. I notice that the section provides for a fine of €2,000 for those found to have leaked confidential information. Has anybody paid a fine for leaking confidential information? I doubt it very much.
I do not know if an official from an agency has been fined, but I am aware, as I mentioned, of a case in the former Department of Social, Community and Family Affairs where someone was dismissed for leaking confidential information. In the case in question, an official lost his job immediately when found to have leaked information about a specific person to a detective agency. There have been instances of severe punishment.
I imagine that this type of provision is to be found in most modern legislation dealing with State agencies. When a group meets, whether it is at a Cabinet meeting or a meeting of the Fine Gael parliamentary party, one cannot legislate for human nature; if a person feels the need to leak information, he or she will do so. While we can do what we like in legislation, human nature is human nature. The section is not intended to place a heavy hand on the organisation. In some instances, people believe that no harm is done when certain information is leaked, but the main target of the section is information that, if leaked, would have a detrimental effect on the organisation in question.
Question put and agreed to.
SECTION 28.
Amendment No. 31 not moved.
Government amendment No. 32:
In page 20, between lines 31 and 32, to insert the following new subsection:
"(5) The Agency shall include details of any gift that exceeds, in its opinion, such amount as may be directed by the Minister, with the consent of the Minister for Finance, in the report undersection 33 for the year in which the gift is accepted.”.
This amendment allows a threshold to be set for the declaration of gifts, to avoid trivial declarations. It is modelled on a similar provision in the Transport (Railway Infrastructure) Act, 2001.
Amendment agreed to.
Section 28, as amended, agreed to.
Section 29 agreed to.
NEW SECTION.
Government amendment No. 33:
In page 20, before section 30, to insert the following new section:
"30.–The Agency 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 Agency or otherwise), not exceeding in the aggregate €10,000,000, subject to the consent of the Minister and the Minister for Finance and to such conditions as they may determine."
The amendment reflects the fact that the new agency will have a commercial mandate and that most commercial State bodies have borrowing powers. The provision allows the agency to borrow a maximum of €10 million and requires that any such borrowings be subject to the prior approval of the Minister for Communications, Marine and Natural Resources and the Minister for Finance. The provision was not included in the Bill at the time of publication as discussions on the conditions and text of the provisions had yet to be finalised by the Minister for Finance. These discussions have now been concluded and the provision has been approved by the Minister for Finance.
While the refurbishment of the property and the hub will be undertaken by PPP, it may be more appropriate for the agency to undertake purchase of refurbishment of property in certain circumstances. This is why the borrowing provision allows the agency to borrow up to €10 million.
Amendment agreed to.
SECTION 30.
I move amendment No. 34:
In page 21, subsection (4), line 29, to delete "as soon as practicable but not later than 3 months" and substitute "not later than 1 month".
I have tabled a few amendments about time. However, the timescale here is far too leisurely. We are not talking here about the publication of annual accounts or the publication of audited accounts, we are talking about the submission of accounts for audit. There is absolutely no reason such accounts should not be ready within one month of the end of the financial year. All well run businesses keep accounts on a monthly basis at least. Just one month's account would, therefore, remain to be closed at the end of the year. Speed in reporting is an essential dimension of accountability. We are asking here that they be sent for audit within one month. We are not talking about publication. I know the Minister had some difficulty in the past about the speedy publication of accounts as I would see it. However, accounts should be sent for audit within one month rather than the leisurely three months suggested here.
This is the standard used in previous legislation. I do not propose to accept the amendment. I understand the Senator's desire for speed and concur with the spirit of his view. However, being over-prescriptive would be a little dangerous in these instances.
I did not expect the Minister to accept the amendment. It is interesting to see each year how the banks vie with one another to publish their accounts within 24 or 48 hours of the end of the financial year. They must have good bookkeeping systems to be able to do so. The accounts may not be audited at that stage but they publish them. We should be urging far more speed in regard to all accounts rather than the leisurely approach which has existed in the past. I accept what the Minister said that this has been the tradition in the past. The fact that we are only asking that the agency send the accounts for audit within a month should be accepted. However, I will not press the amendment but perhaps I will come back to the point at another stage.
I do not agree with Senator Quinn on this issue. As someone who worked as an accountant with a public limited company before becoming a Member of the Oireachtas, I do not think his proposal is practical. Financial accounts are produced on a monthly basis but producing the overall package at the end of the year is an extremely difficult process. In any organisation one is, first, working to deadlines internally and, second, producing for outside. Perhaps Superquinn can do it, but I believe that one month after the financial year has ended is not practical to get accounts ready for audit. I do not think that even three months is generous but at least there is a stipulation in relation to three months. Some companies, semi-State bodies and so on have been very lax in the past, therefore the three months stipulation is quite adequate.
Amendment, by leave, withdrawn.
Section 30 agreed to.
SECTION 31.
I move amendment No. 35:
In page 21, lines 49 to 52, to delete subsection (2).
This is a meaty proposal with which we have had experience in the past. I propose to delete this subsection. The proposal was made in the House and accepted by Ministers in the past, therefore I was amazed to see it turn up again. The last time there was something like this we tabled an amendment. Having had a long debate on the issue, the Minister accepted the amendment.
I utterly and completely oppose the section. It is totally against the spirit of the age to put such a legislative gag on anyone. Has the Minister any idea how appalling this section appears? It smacks more of Russia under Stalin than the 21st century Ireland we are asking people to believe in. The inclusion of this subsection is a complete travesty from a Government which is always trumpeting its regard for openness, accessibility and transparency. The Minister may well say this has appeared somewhere else. It certainly appeared in a Bill last year and the feeling in this House was so strong that the Minister was happy to withdraw the proposal. Clauses such as this have been thrown out of proposed legislation in the past and I hope we do so again today. I urge the Minister to say in this instance that he did not realise the proposal was included, it slipped in without his noticing it and that he will remove it right away.
I support Senator Quinn's amendment. It was remiss of me. I would have tabled an amendment but by the time I found this subsection, I hoped we were moving on from it.
This would mean that the Governor of the Central Bank appearing before the appropriate Oireachtas committee could not criticise public policy. There are two issues here. First, are we saying chief executives should not be able to criticise public policy before a committee but that they can do so anywhere else. This trivialises the Oireachtas because it means the chief executive will go elsewhere and criticise public policy as he or she sees fit. Chief executives of agencies should be in a position to criticise public policy, otherwise they are mere ciphers. They might as well be part of the Civil Service if they do not have the autonomy to think for themselves and express themselves. One assumes that chief executives have a reasonable maturity and will not get involved in unnecessary confrontation. However, the idea that a chief executive should not question or express an opinion on the merits of any policy of the Government or a Minister is wrong.
An obvious case that would arise is the Combat Poverty Agency. If this were the true philosophy, the chief executive of the Combat Poverty Agency would be precluded from criticising public policy on poverty, which in my opinion would be wrong. The alternative is to say they can do so but they cannot do so before the Committee of Public Accounts, in which case it becomes even more meaningless. The confusion is added to in section 32 which refers to all other Oireachtas committees. Apparently there is no such prohibition if the chief executive appears before another Oireachtas committee – he or she can say what he or she likes. The prohibition simply refers to the Committee of Public Accounts.
As I said earlier, I believe this is another one of these phrases to which the Parliamentary Counsel has taken a shine and which is now inserted into legislation connected with the Committee of Public Accounts. One could see this –I do not say this about the current Minister – as a response to the vigorous role the Committee of Public Accounts played with various Government agencies in making life difficult for them and asking difficult questions. One could see it as an attempt to clip the wings of the Committee of Public Accounts. I do not believe that is the Minister's intention but it would be the result of the proposal.
As a former Chairman of the Committee of Public Accounts, when discussing various matters we were always reminded that we could not be critical of policy or of Ministers. Sometimes we had to bite our lip in order to stay within the parameters. I compliment Senator Quinn on this amendment. On day one, we were told the digital hub would be a very exciting, innovative body and we were told about its international component. If we are to forge an independence for it, as any body such as this requires, it would be regrettable to muzzle the chief executive so that he cannot express his thoughts where he may disagree with policy. I fully agree that this measure should be deleted from the Bill.
In this legislation, the Digital hub is being given a commercial mandate. There is no policy involved; it is a commercial operation. More generally – this is where we differ – I believe that a chief executive should not comment on Government policy before Oireachtas committees. One may point out that he can do so at other committees or outside the committee, but we all know Oireachtas committees are political maelstroms. Of course the Opposition would use the opportunity to get at the chief executive, who should be independently appointed. It would put the chief executive in the embarrassing position of having to make comments on political matters and Government policy. That is unfair.
I caution the Senators that while it all sounds nice and open and in the spirit of transparency, in reality, if the independently appointed chief executive of any body comes before an Oireachtas committee, the Senators know as well as I that he or she will be used as a political instrument to get at the Government. The chief executive would be put in the invidious position of having to comment on Government policy whether he or she liked it. This measure is important as protection.
The Minister has it totally back to front. He says that this measure will protect the chief executive from having to comment. Then he says almost the very opposite – that it will force the chief executive not to criticise Government policy where he believes it is essential. The Minister has twisted things, perhaps unintentionally. It is the section that is invidious not the position of the chief executive. It is bad law and should not go through. We mentioned this in the House before and the Minister accepted the point. Measures such as this have slipped in before and were noticed and removed. I urge the Minister to reconsider.
It appears that the director of the Combat Poverty Agency should not comment on poverty, the director of FÁS should not comment on cutbacks in its budget, the director of a State funded research agency should not comment on cutbacks in research funding and the directors of institutes of technology, who are chief executives of essentially State bodies, should not criticise public policy. The extension of this logic is Stalinism. There is no other word to describe it. It is an undemocratic centralism and, incidentally, a philosophy which has characterised this State since its foundation – an authoritarian, hierarchical view of how society should be organised. This is relevant no matter which Government is in power.
What this country needs more than anything else is serious, intelligent debate about its problems. If every agency set up by the State is to be a mouthpiece for Government policy, precluded from criticising it, where does that leave, for example, the Central Bank? Will it be an exception or will there be an amendment in the next Bill saying that the Governor of the Central Bank should not criticise policy? It is traditional in our society that the Central Bank draws our attention to issues of public policy. The Minister is completely wrong on this and his suggestion is offensive to chief executives.
Incidentally, it is clear that the Minister has been in Government for the last number of years because today's Oireachtas committees are remarkably non-confrontational most of the time. They work very well by consensus, except when legislation is being dealt with – but if legislation is being dealt with there will be no chief executive officer of a State agency before the committee. The Minister should read the transcripts, for example, of the grilling received by the president of the Dublin Institute of Technology about its accounts. I mention this because I read it by accident. There was no sign of Government-Opposition division: some of the harshest criticism came from Opposition Members. The way committees function has nothing to do with Government and Opposition. If the Minister thinks they operate on this basis it is a reflection of the fact that he has not been a member of one for quite a while. They operate by consensus, with a small number of people from different backgrounds agreeing about issues worth pursuing. If issues of public policy come up, they do so in a quite unpartisan way.
I saw this when I was on the Joint Committee on European Affairs for a considerable number of years. All that time, there was rarely a question of Government-Opposition confrontation no matter who was being dealt with. It was a question of working through the problem and finding consensus. When the former Leader of Fine Gael wrote a report on the future of Europe, the ensuing debate was not on a party political basis. The Minister is wrong in his understanding of how committees work. He is wrong about the role of chief executives of State agencies and he is wrong about the need to protect them. To stifle their independence would be to destroy the appeal of the role. This measure, if carried through, will reduce dramatically the quality of the people who go into these jobs because they will not do so to be ciphers for Government.
The points have been well made and I do not want to over-elaborate. If certain policies are inhibiting the profitability of a commercial operation, the chief executive should be allowed to point out the constraints under which he is operating. Not to allow him this latitude would be most remiss.
I do not accept what the Senators have said and I reiterate my view. Representatives of the Combat Poverty Agency and other bodies do make comments publicly, regardless of the legislation, which does not prevent them from doing so. It will be the same with this. I have been in the Oireachtas for nearly 16 years so I have a good idea of how the committees operate. This provision should act as a protection to the independence of a chief executive in that he should not be obliged to make comments on political matters. Senator Ryan referred to the examination of the president of the Dublin Institute of Technology. That was in relation to the accounts, not Government policy, which is what this legislation deals with.
I was not saying that.
This protects the independence of the office of the chief executive so that they cannot not be put in an invidious position. It may not always happen, but perhaps once in a year a big political issue may be connected with a certain agency so that the chief executive is obliged to answer political questions, which are best left to the politicians. This is not correct.
An Leas-Chathaoirleach
Is amendment No. 35 being pressed?
I am tempted to press the amendment and call a vote that we would not win, but then we would be unable to discuss it on Report Stage. I will not press it on this occasion because I want the Minister to think it over and discuss it with his colleagues. The advice he will get is that this is over the top. Senator Ryan has given solid reasons it should not apply in other State agencies and the serious position that would arise if we had similar sections in other Bills.
The Minister has time to think about this issue before Report Stage and, therefore, I will not press the amendment because we will have a vigorous debate on the topic on Report Stage. The Minister, if he lies awake at night wondering if he should do this, tossing and turning, will come back and tell us that it is a good idea and the section will be deleted.
My wife would not thank me for lying awake tossing and turning about this issue. In the spirit of the withdrawal of the amendment, however, I will a look at it with my colleagues. I have a strong feeling on this but will discuss it.
Amendment, by leave, withdrawn.
Section 31 agreed to.
SECTION 32.
Question proposed: "That section 32 stand part of the Bill."
Why is there not a prohibition in section 32 similar to that in section 31 if it is such a fundamental principle?
In the context of my earlier statement, I will look at this also.
I am not encouraging the Minister, I just wanted to know if logic was involved or if it was an accident.
I take the Senator's point and will look at the issue.
Question put and agreed to.
SECTION 33.
An Leas-Chathaoirleach
Amendment Nos. 36 and 37 will be discussed together.
I move amendment No. 36:
In page 22, subsection (1), line 41, to delete "30 June" and substitute "31 March".
We should be grateful for small mercies. When I came into this House ten years ago, Ministers fought tooth and nail against the notion that any time limit should be placed on the preparation of a State body's report. I remember looking for the previous year's RTÉ report on 1 December and discovering it had not yet been published. RTÉ had finished the report some time before and had sent it, but it had not been published. I am glad to say that over the ten years I have worn opposition to publication down to the extent that the time limit is now firmly embedded in the word processors of the parliamentary counsel and it tends to turn up in every Bill.
The timescale, however, is wrong. Six months is an age in the life of a company. We discussed the length of time it takes to get accounts. At six months, we risk the annual report becoming almost an historical document instead of a useful tool for management and accountability. If vast companies in the private sector can publish their annual reports within days – certainly within three months – so can we, especially a digital hub development agency, the very ones who should be at the forefront. We cannot have a 21st century company operating to 19th century timescales.
Often a State body submits its report to the sponsoring Department, which then sits on it for months without publishing it. I experienced this in a State body in which I was involved. We were trying to set a standard of publishing the report before the end of March and were able to give it to the Minister only to discover he had no intention of looking at it for months. As a result, we had to push to get it published before the end of April.
Time is of the essence in accountability and management. These reports should be published as soon as possible. Certainly, they should be published as soon as they are ready. It should never happen that a finished report gathers dust on a civil servant's or Minister's desk. I have experience of this and know it has happened. The example I mentioned of RTÉ ten years ago was an instance where RTÉ had given the report to the Minister of the day and it sat there on his desk. As soon as we asked for it, it was published, but not until December. I urge a sense of speed on this matter.
I support Senator Quinn. He was chairman of An Post and succeeded in getting what would not be regarded as the most dynamic of State companies to produce its accounts within three months. Any suggestions that this is not practical for the most dynamic and forward looking of our State agencies should not be taken too seriously.
This is a good time to mention that the public and the Minister for Finance have focused on value for money and efficiency in the public sector. Truthfully, tight deadlines are one of the most magnificent incentives to efficiency. The idea that because it might take six months under limited circumstances, that length of time is needed, is incorrect. If people are given legally obligatory deadlines, things will be done. If they are not, they will be done within the six month period unless there is an exceptional situation like that where Senator Quinn was in charge where things were done with a sense of urgency because of his commitment. Setting a six month deadline means reports will take six months while setting a three month deadline means they will be done in three months. That is reasonable and the sort of thing we need if we are turn our public services into the models of efficiency they ought to be.
I cannot accept the amendment. Having had experience in recent years with Government agencies, there must be some flexibility on the time period and six months is reasonable. There is an effort on behalf of Government to get reports as quickly as possible. On amendment No. 37, I accept its spirit and will return to it on Report Stage.
I thank the Minister and look forward to seeing the result. I understand his point.
Amendment, by leave, withdrawn.
Amendment Nos. 37 and 38 not moved.
Section 33 agreed to.
SECTION 34.
An Leas-Chathaoirleach
Amendment No. 40 is consequential on amendment No. 39 and they will be discussed together.
I move amendment No. 39:
In page 23, line 12, before "The Agency" to insert "(1)".
The purpose of this amendment is to stamp out once and for all a practice that is definitely not in the public interest. When we set up a State body of any kind, the task we have set it is one which would be better done outside the framework of central government. We create State agencies to do specific jobs and in legislating for them we give them all the powers they need to do the job within the broader framework of the public service. We do not create a State body in order that it will delegate the doing of the job to someone else. The only people a State body can properly delegate to are its own staff.
That is not to say State bodies should not employ consultants on occasion. The consultant is a much maligned beast and I can understand the reason sometimes. There are exceptions, however, and times when their expert advice and input are needed. That is not the same as employing consultants to do the job one should do oneself.
I raise this issue because it happened recently, not once but twice. In one of those instances it had to do with the interim company that the Bill before the House will dissolve. It is not a theoretical issue but a practical and an immediate one. As legislators, we need to lay down a marker. My main objection is that it is a bad principle to delegate to an outside body and contractor the key function for which the agency was set up.
There is also a more down to earth objection. Employing somebody else to do something is an horrendously expensive way of getting things done. Consultants charge for their time at levels that can range up to a multliple of what it would cost otherwise, sometimes several thousand euro a day. When one employs them to carry out an executive function and pay them their daily rate, day in and day out, one soon runs into astronomical figures, amounts one would not dream of paying them if they were employed as individuals on one's staff. There is logic and economic sense in this also. It is small wonder that such arrangements are widely regarded by the public as gravy trains which are designed for the benefit of a small clique of insiders because it appears the same names crop up over and over again.
Exactly the same consideration applies to lawyers working for the State tribunals. I saw some figures in recent days that horrified me. Instead of paying them at a daily rate they should be offered staff positions at a set salary. However, that is outside the scope of this legislation. The two cases have a great deal in common. What I am urging is that the Minister consider this in the way proposed. There may be a different way of doing it, but the way I propose is worthy of consideration.
I support the amendment because I recall at the Committee of Public Accounts there was concern in regard to the number of consultants employed. Often there was resentment within the Civil Service in regard to consultants being deployed from outside as it was considered that there was the necessary expertise to carry out whatever consultancy was required. In the financially straitened circumstances about which the Government and the pundits continue to remind us, the whole area of the appointment of consultants should be looked at. It should be the last decision of any chief executive of any organisation to deploy consultants. Certainly, there has been excessive use of consultants in recent years.
I fully support the point made by my two colleagues. The commitment of a chief executive officer, as distinct from the knowledge of a consultant, is quite different. A consultant is not single-mindedly committed to the advancement of the agency or organisation but there to give advice. The wonderful thing about being a consultant is that, subject to certain laws about negligence, he or she is not responsible for the consequences of his or her advice because ultimately he or she does not take the decisions. A chief executive, subject to proper agency supervision, takes them. Therefore, to put a consultant in that position is to invite temper-rising and diffusion of responsibility, which is not a good idea. I fully agree with Senator Quinn's amendment which I support enthusiastically. I wish to raise other issues about the section to which I will return in due course.
While I appreciate Senators and Deputies on all sides in both Houses have strong views on the hiring of consultants, advisers and so on, I ask Senators not to let those views cloud what is being done in this Bill. The digital hub is a detailed enterprise. There was agreement on an earlier section that the chief executive and the chairman of the board would be at arm's length. In that instance we suggested a member of staff would replace the chief executive should there be a vacancy in the chief executive's position. However, that member of staff may not have the required skills to run the company. In that case the agency, with the consent of the Minister, should be allowed to appoint consultants.
The amendment, while well meaning, would restrict the agency in what it could or could not do. In the event that there is a vacancy or because of the non-availability of the chief executive the member of staff replacing him or her in the interim period may have grave difficulty in running the company. I cannot accept the amendment as it would cause a difficulty in regard to what we are trying to do in the other section.
The Minister has made a case that I understand and I can see there are exceptions. My amendment had the effect of drawing to his attention the concerns about appointing consultants to do the work which has happened on occasion. I accept it is probably too broad and that the Minister's explanation is correct. I urge him to take it into account with a view to finding a better way to solve the problem.
Amendment, by leave, withdrawn.
Amendment No. 40 not moved.
Question proposed: "That section 34 stand part of the Bill."
There are consultants and advisers involved in all scales of activity. Somebody may be given a short contract at a cost of no more than €1,000, while somebody else may be involved in a major task at a cost of €100,000. Is there not a need for a code of conduct or similar procedure in regard to the process by which consultants are appointed whereby a public competition should be the norm? Where a significant sum of money may be involved – I will not argue whether it should be €5,000 or €50,000 – a contract to consultants should not be capable of being offered without some element of advertising and public competition.
I do not want to tie people in excessive knots, but if we are talking about significant sums of money being paid to particular individuals, then good sense dictates that the public understands that this is the consequence of proper public competition. I wonder about EU regulations if public money of the scale of, say, €100,000 is to be spent on a consultant. If this was to be done without transparency, I suspect we would run into problems with the European Union in terms of the rules about not confining competitions to nationals of one country. I would like to hear the Minister's views on the matter.
There is a limit, if memory serves me correctly, of €150,000, above which it is subject to public procurement where one has to advertise in the EU Journal. For smaller amounts there would be a degree of discretion, but one would still have to advertise. In that respect there would be openness and one would be answerable to the agency in regard to lower amounts. That is the system in place and it works reasonably well.
In this case particularly there will be a need to take on consultants. I visited MediaLab Europe to which Senators might go and see what is being done. It is an incredibly specialised area. From that point of view I have no doubt the digital hub would be exactly the same on the other side of the road. As a former Minister for Social, Community and Family Affairs, I am aware that there were a great many consultants and a great deal of change in regard to PPS numbers and the Grow and Reach projects. I used to be asked questions in the Dáil as to the reasons consultancy services were so massive. Since the expertise required did not exist within the public service consultants had to be brought in to devise the standard card, etc. There are occasions when this is necessary.
An Leas-Chathaoirleach
We have given ample time to this section.
Far be it for me to argue with you, a Leas-Chathaoirligh, but we spent a great deal of time discussing an amendment.
I do not have a problem with Departments engaging consultants and I am not pushed whether members of my party or others make political comments about them. I am concerned that consultants be people appointed on merit and that the public is satisfied they are so appointed. That involves transparency. There is a case for the Minister to at least put together a code of conduct for the agency whereby if a budget for particular consultants is to exceed, say, €50,000 such consultants should be appointed following a public competition. It does not have to take the pace of the Civil Service Commission. The agency can do this at its own pace but it should advertise, invite people in and be transparent in its evaluation of who gets the contract.
All agencies are subject to Department of Finance guidelines on the hiring of consultants. The guidelines which are fairly stringent are overseen by a section in the Department of Finance.
Question put and agreed to.
Section 35 agreed to.
SECTION 36.
Question proposed: "That section 36 stand part of the Bill."
Is this usual in legislation setting up State agencies or is it new? I have not seen it written down before. I have seen a letter from the Department of Finance regarding a colleague in the Dáil who was indemnified by the State when suing in case the costs were awarded against him. Only one paragraph of the letter dealt with indemnification. Most of it warned the rest of us not to assume for one second that if we, in our capacity as members of Oireachtas committees, sued anybody the Department of Finance was going to pick up the bill. It is unusual that written into this legislation is a statement categorically assuring people that they would be indemnified against all claims. It may be typical but I have gone through over 20 years of legislation and have not come across it before.
The Aviation (Regulations) Act, 2001, contains a similar provision. It is a standard provision which enables the agency to indemnify a person to whom this section applies against actions arising from bona fide performance of their duties.
I am somewhat astounded – I have said this before – at the number and quality of people who put themselves forward for positions on this board. They are willing to put themselves into the public eye, something which they could do without. In many cases, they receive only a pittance for the work they undertake. The least we, as a State, can afford them is protection against their personal liability in any instances where they could be sued, provided they have been bona fide in the delivery of their duties. I recently set up an appeals process in my Department. The person to be paid for the work involved has specifically asked for a similar indemnification. I can understand why. People must be sure they will not be personally sued. Obviously the agency could be sued and would operate under an umbrella regarding any difficulties which it, because of its decisions, had made.
It is only right and proper that the people involved in the agency, provided they have discharged their duties in a bona fide manner, be afforded this protection.
I do not wish to delay the House unduly. I do not disagree with this section. I merely said it is not something with which I am familiar. While I have problems with other sections of the Bill, I do not have any problems with this one. This principle should apply universally. I am aware of cases – I am sure the Minister is aware of them also – where trustees of community halls and associations have been held personally liable because they were not adequately insured or insured at all. These are individuals – precisely those identified by the Minister – who put themselves into the firing line for no great reward. We could usefully extend this indemnification to a wider area than a couple of State agencies.
Question put and agreed to.
SECTION 37.
Question proposed: "That section 37 stand part of the Bill."
Is this provision necessary? I am not keen on State agencies being in no way responsible if they do not perform their duties. Many other people do not get away with that generosity of spirit. The Bill provides that, regardless of what they do wrong, they cannot be sued by anybody. I find that rather difficult to accept.
I am informed that it is a standard provision.
Question put and agreed to.
Sections 38 and 39 agreed to.
SECTION 40.
Government amendment No. 40a.
In page 24, subsection (1)(a)(ii), line 27, to delete “the development of”.
I propose to take amendments Nos. 40a, 40b. and 40c together.
This section deals with the transfer of assets to the agency, including the property purchase for the hub by Office of Public Works, which has remained vested in the Office of Public Works pending the enactment of this legislation. The amendments are proposed to bring greater clarity to the section.
Amendment No. 40a is a minor drafting amendment which gives greater clarity to that paragraph. Amendment No. 40b is technical in nature and is being proposed on the advice of the Parliamentary Counsel. Amendment No. 40c is also a drafting amendment which will avoid repetition of a provision already included in section 7.
I would also like to signal to the House that there will be further amendment of this section on Report Stage. On the advice of the Attorney General's office, the amendment will clarify that properties to be transferred to the agency will not include those held by the Office of Public Works in respect of Media Lab Europe which are also located in the digital hub area.
On foot of the amendments to this transitional provision, I would like to signal to the House my intention to propose certain minor amendments to the following sections on Report Stage: two minor amendments to section 3 will deal with allowing the boundaries of the Hub to be varied as well as extended by ministerial order so as to allow for any future eventuality in defining the area of the hub; a minor technical amendment to section 7(2)(b) spelling out, in greater detail, the ways in which the agency would manage its interests in property and a minor technical amendment to section 9(6) to correct a drafting error.
I would also like to signal to the House that there will be further amendments to section 8 on Report Stage. These relate to the commercial nature of the agency and the carrying out by it of the PPP process to refurbish property for the hub.
As I outlined in relation to the borrowing provision, it may be that, in some instances, the agency would take a more direct role in procuring land or property for the digital hub and in carrying out construction and maintenance works. The first amendment to section 8 is, therefore, intended to bring that into line with what is envisaged in the new borrowing section.
While I am satisfied that the Bill as it stands will confer all the powers necessary for the agency, it has been decided to include further amendments to spell out in greater detail the powers the agency will have to partner the private sector in order to fulfil its commercial remit. Specifically, these will deal with the agency's powers to enter into agreements for the purposes of developing the hub.
A further three amendments will be proposed to section 8. These will again spell out what is already implicit in the Bill regarding the agency's commercial remit. They will deal with the powers arising from its functions to exploit commercial opportunities to receive income and to make payments. This highlights that the agency, being a commercial body, will be obliged to obtain revenue from its activities.
It is proposed to include these provisions to make the statutory underpinning for these aspects of the agency's functions as explicit as possible to take account of the perception of the project by the potential commercial partners. This will strengthen the PPP process and the standing of the agency in the eyes of the market. The amendments are in line with current legislative precedent, such as the State Authorities (Public Private Partnership Arrangements) Act, 2002, and the Transport Railway Infrastructure Act, 2001.
Amendment agreed to.
Government amendment No. 40b:
In page 24, subsection (1)(b)(i), line 35, after “former company”, to insert “or the Commissioners of Public Works in Ireland”.
This amendment is technical in nature and is proposed on the advice of the Parliamentary Counsel.
Amendment agreed to.
Government amendment No. 40c:
In page 25, lines 10 to 12, to delete subsection (4).
This is a drafting amendment which will avoid repetition of the provision already included in section 7(2)(b) of the Bill.
Amendment agreed to.
Section 40, as amended, agreed to.
Sections 41 and 42 agreed to.
Amendment No. 41 not moved.
Section 43 agreed to.
NEW SECTION.
Government amendment No. 42:
In page 25, before the Schedule, to insert the following new section:
"PART 4
AMENDMENT OF COMMUNICATIONS REGULATION ACT, 2002
44. The Communications Regulation Act, 2002 is amended –
(a) in section 2(1), by substituting for the definition of ‘Minister' the following definition:
‘ "Minister" means Minister for Communications, Marine and Natural Resources;',
(b) in section 3(3), by substituting ‘done under the order or regulation' for ‘done under the order',
(c) in section 51, by deleting subsection (2) and consequently renumbering subsection (1) of that section as section 51, and
(d) in Schedule 1, Part 1–
(i) opposite the mention in column (2) of ‘Wireless Telegraphy Act, 1926' –
(I) by substituting in column (3) for ‘Section 3(6) (inserted by section 11(c) of Act No. 5 of 1972)' the following:
‘Section 3(3B), (3C) (inserted by section 12 of Act No. 19 of 1988) and (6) (inserted by section 11(c) of Act No. 5 of 1972)', and
(II) by inserting in column (3) ‘Section 12' above the mention of ‘Section 13',
and
(ii) opposite the mention in column (2) of ‘Postal and Telecommunications and Services Act, 1983' by substituting in column (3) for ‘Section 111 (as amended by S.I. No. 96 of 1998)' the following:
‘Sections 5(6) and 111 (as amended by S.I. No. 96 of 1998)'.".
This is a minor technical amendment to change, for ease of reference, the reference in the Act from the Minister of Public Enterprise to the Minister for Communications, Marine and Natural Resources.
Amendment agreed to.
Schedule agreed to.
TITLE.
Government amendment No. 43:
In page 5, line 10, after "LIMITED" to insert ", TO AMEND THE COMMUNICATIONS REGULATION ACT, 2002".
Amendment agreed to.
Bill reported with amendments.
An Leas-Chathaoirleach
When is it proposed to take Report Stage?
Next Tuesday.
An Leas-Chathaoirleach
Is that agreed? Agreed. No time has yet been set.
Report Stage ordered for Tuesday, 26 November 2002.
Sitting suspended at 12.55 p.m. and resumed at 1.30 p.m.