Markets in Financial Instruments and Miscellaneous Provisions Bill 2007: Committee and Remaining Stages.
Sections 1 to 15, inclusive, agreed to.
SECTION 16.
Question proposed: "That section 16 stand part of the Bill."
The motivation behind section 16 has changed since we last discussed this Bill in the House. Was it based on other legislation lying around in the Department of Finance that just needed to be tidied up as part of other miscellaneous legislative measures, as we were led to believe? We were told by the Minister last week that there were eight sections in this Bill when it was first proposed to the Government and that an additional 17 were tagged on. It now transpires that the motivation behind section 16 was very much to look after one individual. Regardless of the long-standing merits of the legislation, we now know its basis. It was interesting that a Government Senator first questioned this.
A Green Paper on pensions was published by the Government not long ago. The pension proposals therein have all the newness of a reheated dinner yet, with great haste, section 16 found its way into this Bill. People are of the impression that the Opposition somehow approves of it in the same way that the Taoiseach and Ministers approve of giving themselves such extravagant pay awards at a time when, in the words of a former Taoiseach, we should be tightening our belts in view of what lies ahead. This lowers the standing of politicians in the eyes of the general public. We are making fools of ourselves. Why was it not announced that this section was inserted to suit one individual and was based on correspondence sent by that same individual to the Minister for Finance? That should have been made known.
Nobody will dispute the fact that people are entitled to their pensions. That a former Minister forgot to claim his pension is irrelevant. What I object to is the sneakiness and the Government's hope that this provision would slip in under the radar, which has happened before. That is why members of the general public raise their eyebrows at this sort of behaviour. It is indicative of corruption and of a Government serving itself rather than the people. Rather than being outraged, people are silently angry that the Government is once again looking after itself, with large pay awards, generous pensions and changing legislation to suit its members.
There is not much Senator Twomey has said with which I could disagree. It does not do any good in a republic to have people treated differently.
What is the purpose, under a Bill entitled Markets in Financial Instruments and Miscellaneous Provisions, of this section? One can only assume the miscellanous provisions element allows anything to be introduced in the Bill but surely in legislation, items should be related to one another? Does the inclusion of miscellaneous provisions in the title of a Bill allow for any provision to be introduced on the whim of the Minister?
Deputy Micheal Woods, on whose behalf this provision is included in the Bill, described it as the Minister clearing up an anomaly. I suggest that is not the case. This provision proposes to create an anomaly. In the past 18 months I have written to the Minister for Finance on several occasions on behalf of constituents who could not obtain their pension entitlements because they had failed to claim them before a specific deadline. The Minister indicated, quite correctly, that he could not possibly change the regulations because that would open up a can of worms. If that response is good enough — and I believe it is a good and prudent response — for ordinary pensioners, why is it not good enough for Deputy Woods? All pensioners should be treated the same before the law. This is not appropriate in a republic because we are treating one individual differently from everyone else.
We are creating an anomaly by introducing this provision in law, which is not wise. It is not appropriate to damage law by creating an anomalous situation.
I concur with the sentiments of the previous speakers regarding this matter. At the weekend, through some excellent journalism, we became aware of further information pertaining to section 16 of this Bill. I agree with Senators Twomey and O'Malley that this is no way to conduct our business. Adding a large amount of so-called bits and pieces to Bills allows for circumstances such as this to arise and increases public cynicism. It does not do the legislation any good, nor does it reflect well on us as legislators.
One would have to ask why the information about Deputy Woods revealed over the weekend was not given to us before. Why was it not made clear that somebody had basically forgotten to claim his pension entitlement and that a request had been made to the Department of Finance to change the rules? If we had known that, we would have been able to deal with this section of the Bill in a more prudent and informative manner. We read today as a result of another piece of excellent journalism that a garda made a similar request to the Department of Finance but it was denied because of the possibility it would set a precedent. The reality is this is setting a precedent, which my fellow speakers have said. We should treat everybody in the same manner. State pensioners can only backdate their pensions by six months. In this instance, a former Minister's pension will be backdated much further. It will breed cynicism and the public will say politicians are looking after themselves again.
This comes on the back of pay awards which the Government was given and accepted last week. It shows a Government which is out of touch. Furthermore, I cannot believe the Deputy in question said it was not a huge amount of money in real terms. It is €37,000. On the back of what the Taoiseach and other Ministers said last week about the pay awards, I find such a comment amazing. It is a significant amount of money. When the Deputy retires from the House, it will contribute to him having a significant pension. Given the work he has done, there is no question but that he is entitled to his pension but for one to say this is not a huge amount of money is crazy.
We should have had this information when we dealt with the Bill last week. There is a huge lesson to be learned. Bills brought before both Houses should be more coherent. The idea of adding on miscellaneous provisions creates a dangerous precedent. In cases where provisions are being made for individuals, we need more information when a Bill is going through the House, otherwise these situations will arise. We must treat people fairly in regard to pension entitlements. We cannot have a situation where the Government looks after an individual who is a former Minister but does not treat people who apply for similar entitlements in the same manner. Many of us have had cases brought to our attention and have made representations on people's behalf which have been turned down. How can such representations be turned down when this one was facilitated by the Minister for Finance? The situation is ridiculous and needs to be changed.
As was alluded to by Senator Twomey, I was the only one who raised concerns about this provision on Second Stage. I asked why a provision of this nature was being included as a miscellaneous provision in a Bill in respect of which we had to agree to an earlier signature motion and had a time limitation on it because of the main provision dealing with markets in financial instruments. I was surprised the issue was not taken up elsewhere. The debate was very rushed and we dealt with the Bill in the minimum amount of time.
However, the concern I expressed then is one which I express now. This provision did not need to be dealt with in this Bill and it could have been dealt with in a Finance Bill or in a Bill following the Green Paper on Pensions about which we have spoken on several occasions on the Order of Business. There was no time specificity about this measure. It has created obvious unhappiness among members of the public, to which we need to respond as a House of the Oireachtas.
However, we have passed Second Stage. All of us need to dwell on how the Bill proceeds from here and keep in mind that all Stages need to be passed today given its main provision concerning markets in financial instruments. Outside this measure, there is nothing objectionable in the Bill and there is much that is necessary. It is fortunate we have this opportunity on Committee Stage to reopen a debate on an issue which did not get a proper airing in the first instance.
Not only do I wish to repeat the concern I expressed on Second Stage but we need to put down a few markers on what should constitute a prior consultation process before the introduction of legislation in either House of the Oireachtas. This is especially relevant early in the life of what is, following my party's involvement, essentially a new Government. As I said on Second Stage, legislation which contains miscellaneous provisions is bad and we should avoid it at all times.
In terms of the details of legislation, being part of a Government involves having an active consultation process prior to the presentation of a Bill to either House of the Oireachtas and I regret that has not happened on this occasion. Outside the main provisions of the Bill, which we are obliged to pass today, I ask for an acknowledgement that this issue was not properly addressed and, as Senators said, that it is dealt with properly in terms of having an even playing pitch in the area of pensions, that all who offer public service in this State are treated equally and that any inconsistencies in the system and any anomalies which arise because of bad legislative practice are corrected at the earliest possible opportunity, if not in the upcoming Finance Bill then at least in the two social welfare Bills which will come before the Oireachtas on foot of the budget in the next few weeks.
I am very sorry to see my old friend and colleague, the Minister of State, Deputy Batt O'Keeffe, in the hot seat today because he is a thoroughly decent and honourable man. It cannot be a very happy day for him to stand over this squalid business. I also recognise what Senator Boyle said and I salute him for it. He has acknowledged the technical difficulties but he did not go as far as I would have liked into the morality of this because it is the morality which stinks. However, he has done the House a service by pointing out just how insidious this process was. The Green Party is a partner in Government and holds the No. 2 position. However, it was not consulted about this and it is important to state that on the record. It is very damaging.
What kind of Government is it when this kind of material is smuggled in? The reason the Green Party was not told is that it stinks. This is about a snout in the trough and I will label this the snout in the trough amendment. The Minister of State need not shake his head because that is precisely what it is. It is for one person who, as I said on the Order of Business, was so impoverished by circumstances that he did not even notice and apparently believes €37,000 is very little money. Some people live on a lot less than that. He is in receipt of more than €100,000 per annum from the other House and has just been given another €20,000 for being chair of the Oireachtas Committee on Foreign Affairs. I have always had good relations with this gentleman. Perhaps we should address the fact one can get severance plus a pension while one is still serving and in receipt of an income. We are heading into choppy financial waters. Is it any wonder people in this country have contempt for politicians? Look at the language of this section, which states:
"(9) On application for a pension under this section to the Minister for Finance, by a person whose entitlement to the pension arose on or after the date of commencement of this section, the pension is payable as of and from a date that the Minister for Finance may determine in writing that is—
(a) not earlier than the date of entitlement, and
(b) not later than the date of the application.
This is laughable. I asked on the Order of Business whether I was in Ireland, which is one little island, or the flying island of Laputa, described by Jonathan Swift as the place where they distilled moonshine from cucumbers. Is there any possibility one could, in one's wildest dreams, have granted a pension earlier than the date of entitlement? Alternatively, could one grant a pension later than the date of application? This is bizarre material and a complete disgrace.
We have been told a garda made a similar application and was denied so this provision has been made specifically for one senior member of Fianna Fáil. I also received a letter from a constituent, with which I will shame the Minister of State by putting it on the record. She writes:
I have just been informed by my local tax office that I am not entitled to a PAYE credit of €1,490 because I am an employee of my husband's business (section 472, Taxes Consolidation Act 1997). I work as a dental practice manager. My hours of work are Monday to Friday, 9 a.m. to 5 p.m., the same as all other employees in the business. I believe I am being discriminated against because of my marital status and this is grossly unfair. I am also not allowed to make PRSI contributions, for the same reason, and this means I have no social welfare entitlements, including sickness benefit, maternity, pension etc.
What about that woman's pension? She would be glad enough with €37,000. The former Minister does not need his pension but forgot all about it. It did not bother him and he did not notice it. In addition, he thinks it is for a small amount. If it is a small amount, let him give it to this woman.
I wonder what happened to Fianna Fáil, the people's party. It is a very bad day for this country when we pass special legislation in the interest of one Member of the other House. It is disgraceful. Hesitation has been expressed on the Government side so I will give them an opportunity to put that into practice by calling a vote on this section. I will also oppose the earlier signature motion this evening.
I wonder if President McAleese, who is a lawyer herself, will feel comfortable signing this nasty little fiddle. Any other citizen would be told that if they did not put in an application on time, they would be in trouble. I have just paid my preliminary tax and received a letter from my accountant saying it had to be in the post to arrive in Limerick by a certain date or I would be fined. I am an Independent Member and not part of the Government but could I, as a Member of the Oireachtas, get special legislation enacted to save me from the financial consequences of my carelessness or forgetfulness? I am completely against the snout in the trough phenomenon and I will vote against the snout in the trough amendment.
In supporting the Markets in Financial Instruments and Miscellaneous Provisions Bill 2007, and the section we are now discussing, I am conscious of the fact that a pension is not an arbitrary payment, nor a gift. A pension is an entitlement, based on deferred pay. It belongs to the person who has paid his or her contributions.
Without interruption, Senator Norris.
I will interrupt any time I like. Senator Hanafin is not in the Chair.
Senator Hanafin without interruption.
I am entitled to speak without interruption.
Everybody is interrupted. I have even been interrupted myself.
Senator Hanafin without interruption.
A pension is deferred pay and that is a fact of life. It belongs to that person. We are dealing with one section of the Bill which relates to a former Minister and other people who might find themselves in that situation. Notwithstanding that, it behoves us to look at all sections to ensure that people who might miss out do not do so. It is wrong to point the finger at this person. I believe people should have all their entitlements and we should look at the issue because such people have worked for their pension and deferred their pay during their working life to make provision for when they retire or no longer do the job in question. In the future, if people have certain entitlements they should be given a letter from the Department to advise them to apply within a certain date or their circumstances could become very difficult.
We owe the press a service for pointing out this matter. The issue must be dealt with across the board to ensure equity because to prevent one person from getting a pension is wrong. It has given us an opportunity to ensure equity across the board. The Opposition has quite rightly spoken on behalf of a civil servant who lost certain rights but on Second Stage the Opposition did not even speak to the Bill. Not only that, a Senator who has spoken on behalf of civil servants today called certain civil servants liars on the last occasion he spoke. That took me by surprise because in the years I have been in this House, I have rarely heard anybody called a liar. It ill became the Member to call civil servants liars on that occasion.
On a point of order, I did not, as Senator Hanafin suggested, call civil servants liars. I believe it might be the politicians in Government who are not telling the truth on this issue. I have doubts about it as I cannot prove the allegations but that is the way this Government works.
The Senator can, however, besmirch innocent people and has no problem in doing so. Nor does his party.
I remember dealing with the illegal nursing home charges and the Travers report dealing with billions of euro of taxpayers' money which was lost——
That is not a point of order.
Senator Twomey without interruption.
My point of order was raised to correct the Senator and put on record that I referred to politicians and not civil servants. I believe civil servants are far more likely to tell the truth than the shower running this country.
The Senator proves my pointby saying he has no proof but still calls people liars. That is disgraceful.
Senator Hanafin should get on his high horse about something which might actually matter.
The Tánaiste and Minister for Finance is at an important Government meeting. The Minister of State at the Department of Finance, Deputy Noel Ahern, is at an official function so I am delighted to have the opportunity to deal with this issue——
The Minister of State is not delighted to be here. That is why he is telling us the other Ministers are elsewhere. The Minister of State would rather be anywhere else.
——and to deal with it on a logical and truthful basis. The provision brings payment to Ministers into line with civil and public servants who make late applications for a preserved pension. Whether or not an individual case arose, ministerial pensions must be brought into line, irrespective of whether they make a late application, in the same way senior civil servants, to whom we are aligned, can take up a pension if they apply late.
I will deal with a number of issues that have arisen. One concerns the application by the former Minister. It is important to put on record the fact that arrears of pension for the period in question would amount to approximately €75,000, as against the €500,000 which has been touted in the media. A person who is still serving receives an abated pension. It is a two-year issue that is at stake in this instance. I want to comment on some of the terms which have been used during the debate on this case. Words like "morality" and "sneakiness" have been used.
Yes. When the former Minister made an application to the officials in the Department of Finance, it became obvious to them that there is an anomaly in the system as it relates to Ministers, as opposed to public and civil servants. The departmental officials recommended to the Minister for Finance that the anomaly should be rectified. The recommendation did not come from the Minister for Finance. The former Minister did not make representations to the Minister for Finance in his own case — that is a fact.
I would like to speak about the subject of transparency as it relates to the issue that has arisen. It is clearly stated in the supplementary information that accompanies the Bill that this is the issue in question. When this issue was being dealt with in the Dáil, Deputy Burton asked whether it applies——
On a point of order, can I ask the Minister of State to help the House by placing on the record the exact words from the explanatory memorandum to which he refers?
That is not a point of order.
If it is not, I ask the Minister of State to quote from the relevant section anyway.
It is mentioned in the explanatory memorandum.
Can we have the words? When I looked for the Bill, we had to send off all over the House to get it. There is no sign of the explanatory memorandum.
If the Senator gets the memorandum, he will find that the reference I have mentioned is in it. I have lost my train of thought.
It is important to note that this issue arose during the debate in the Dáil. If my memory serves me correctly, it was raised by Deputy Burton. When she asked the Minister for Finance if these provisions apply to any former Minister, he specifically said that they do. When Deputy Bruton was asked about this issue yesterday, he acknowledged that it had been discussed in the Dáil. Therefore, I can state categorically that nobody was trying to hide this issue. It was a matter of public knowledge. When Deputy Bruton was interviewed yesterday, he acknowledged that the issue had been debated in the Dáil. There is nothing underhand about it at all.
If a serving Minister makes a late application for a pension, he should be entitled to receive it, just like all other public servants, including the senior civil servants to whom Ministers are aligned in all aspects of these matters. It was agreed by both Houses that the pay and pension rights of Ministers, including pay increases, should be aligned with those of senior civil servants. This measure extends those rights to provide for late applications. Nothing underhand is going on. This is very much above board. Other than those who are taking issue with this proposal because they want to make political fare from it, everybody acknowledges that the former Minister in this case is entitled to equity and should be given his full pension entitlements, even though he made a late application.
The Minister of State's coalition partners seem to be a bit queasy.
A number of other issues were raised. Senator Boyle suggested that this issue could be dealt with in the forthcoming finance Bill. However, it could not be addressed in that Bill because it has the status of a money Bill. Other Senators argued that this measure should not be attached to this legislation at all. Given that some other issues are dealt with in the miscellaneous provisions section of the Bill, it is appropriate to resolve this anomaly in this legislation as well. It would hardly have been worthwhile to introduce a separate Bill to cover this issue on its own, when certain supplementary issues were being addressed as part of this legislation. The Minister for Finance has acted with absolute probity and transparency in everything he has done in this instance. Equity is being applied to a former Minister in line with the guidelines covering all other public and civil servants.
I thank the Minister of State for clarifying a few issues. I am not certain about one thing. The Minister of State indicated that this proposal will bring the rules relating to ministerial pensions into line with the current practices for senior civil and public servants. We heard earlier today about the case of a former senior Garda inspector. I am worried about the distinction that has been drawn. I presume that discretion will be the order of the day here. While I am comforted somewhat by the Minister of State's comments, he has not stated directly that an existing anomaly is being corrected, although he has implied it. I do not like the fact that a senior public servant will not benefit, or be given an advantage, in the same manner as the former Minister in this case.
He has already benefitted.
He was denied a backdated pension.
If a late application for a pension entitlement is made by a public or civil servant, he or she is entitled to get the full benefit of the pension. In this Bill, the Minister for Finance is regulating to ensure that the same thing that applies to civil and public servants also applies to any Minister.
What about ordinary citizens? What happens to them when they miss deadlines?
What about the ordinary garda?
I can deal only with matters relating to the Minister for Finance. If the Senators want to take up these issues directly with the Minister for Social and Family Affairs, they are welcome to do so. I will address the issues which were raised in respect of the garda, if Senators would like me to do so.
What about the issue I raised?
The former Minister's case is not comparable to the case of the garda that was highlighted in a newspaper article today. The garda in question was dismissed from the force in 1973. At that time, forfeiture of superannuation benefits applied in the case of dismissal. Preservation did not become a feature of the Garda Síochána superannuation scheme until October 1976. Under the terms of the scheme, therefore, the garda in question does not have any superannuation entitlements.
I have not quite finished. The Minister of State suggested in his reply that it is not necessary to deal with this matter today, which is something that was also inferred by Senator Boyle. We need to make progress with the Bill, but that could be done even if this section were to be withdrawn. I do not want to put ideas into Senator Boyle's head, but I am interested in the notion that this proposal could be withdrawn and discussed at a later stage. The Senator made the very good point that it could be considered in the context of the Green Paper on pensions. Would that be appropriate? Surely there are currently no time constraints in the case of the individual. Is the individual getting any money as things stand? Would the Minister of State consider withdrawing this section of the Bill?
He could allow the rest of the Bill to go forward and deal with this matter at some future time.
I asked the Minister of State to explain the motivation behind this proposal and to outline how this section found its way into the Bill. The Minister of State's comments about the finance Bill were right, but the provision relating to ministerial pensions could be included in the forthcoming social welfare Bill. Perhaps it would not sit easily with the Government to include in that Bill, which will probably provide for social welfare increases of €10 or €12, a measure facilitating the payment of a pension of €30,000 to a sitting Government Deputy who is earning more than €120,000 per annum. The Minister of State would probably find it very uncomfortable to slip a ministerial pension of this magnitude into a social welfare Bill.
We wish to examine the motivation behind this section of the Bill. I am sure there are many other anomalies with regard to pensions. I refer to a member of the Garda Síochána who was dismissed in 1973 but the superannuation payments changed in 1976. I am sure there are other members of the Garda Síochána who were somehow disadvantaged in the years to 1976. I am sure many members of the Garda Síochána have written to the Department of Finance over the past 31 years and would have received replies from various Ministers for Finance stating that the law could not be changed in favour of individuals.
I ask the Minister of State to provide some background information. I question whether this legislation was designed to be slotted in to deal with the case of one individual. I note that some Senators and some members of the Government are taking umbrage because their little scheme has been exposed so beautifully in the Irish Independent . We need to know how this provision found its way into this legislation. I can understand how some other provisions found their way into this Bill whose initial eight sections were increased to 17 sections. There is a significant issue with regard to sub-prime lending and mortgages and many other aspects of the legislation. Some Members on the Government side of the House are acting like they are the only ones with any expertise on legislative issues. I would be one of the first to admit and the first to acknowledge constructive criticism with regard to my knowledge. When this Bill was discussed in the House last week, Senator MacSharry was very quick to state that those of us on this side of the House had limited knowledge. I acknowledge that our knowledge was limited because these issues are being slipped into legislation and we are not being informed. I remind the House that the general public reading newspapers such as the Irish Independent regard us as a crowd of gougers looking after ourselves. We must ask for clarification when this is exposed.
Deputy Richard Bruton is a man of great integrity. When he acknowledges that he did not know about this last week when he allowed this legislation to go through, he is attempting to preserve the integrity of the Houses of the Oireachtas. He allowed this legislation go through because he was not fully informed. We are now fully informed as to what is happening——
He was fully informed. During the debate in the Dáil it was asked if a former Minister was involved and the Minister for Finance said "Yes". Deputy Bruton acknowledged this yesterday in a radio interview.
It was left at that, even though people on the other side of the House are usually quite good at giving far more information than just replying with a "Yes". This is a serious issue and it is a recent happening.
I ask the Minister of State to provide the background information to this section of the Bill. When did the Department of Finance decide to include this provision in the Bill and what was the motivation for this provision? Did the Department simply decide it had a bag of bits and pieces lying around waiting to be included in legislation? This does not seem to be what happened in this case.
I wish to join with other colleagues who have paid tribute to investigative journalism in this case because these journalists have done us all a considerable service. Colleagues will know that I was quite critical of the newspaper industry in the context of the defamation Bill. Many Senators did not have the courage to say very much because they were afraid of the power of the newspapers but I am not afraid of them. However, this instance shows there can be good investigative journalism and it happened without the passage of the defamation Bill or anything like it. This was a case of good investigative journalism. On the issue of the defamation Bill, I challenge the Minister of State to provide an example where investigative journalism was stifled because I do not know of a single instance.
I refer to the explanatory memorandum to the Bill which is as clear as mud. One would need one's attention drawn to this provision. I agree that technically the Government is covered, but it is opaque. I draw the attention of the Minister of State to the fact that his two junior partners in coalition are of the same view. They made it clear.
They changed the mind of one of my partners when she found out the true facts.
We have all seen horses getting close to the water but they can be a little bit reluctant to drink; there is a little bit of political hydrophobia hanging around this House. At least she came to the brink of the trough.
Jimmy O'Dea will never be dead.
Perhaps it is a good thing she did not shove the snout in because there are plenty of people around here who, at any available trough, whether it contains water or money, will shove their old snouts in for a good snuffle, hoping there will be dollars in it.
I refer to the former Minister, the former Chairman of the Oireachtas Joint Committee on Foreign Affairs, for which he receives a payment of €20,000. We should all be grateful because he did us all a favour, letting the Church off with a couple of hundred million euro and sticking the taxpayer with that amount. We should all be delighted and grateful. I am also grateful for the Minister's clarification of the amount which is €75,000. This is a small amount, a flea bite, according to the Minister.
It is not a small amount.
What we are doing today is shabby. It was an attempt to slip this provision in by sleight of hand and I am very unhappy. I have made the point and others could produce dozens of examples of the anomaly between the way in which a Minister is treated compared with an ordinary citizen. I thought this country was a republic but it is obvious we have an aristocracy which behaves as if it were in the days before the French Revolution.
I have never exchanged a cross word with the Minister involved. I have no problem with him but I have a terrible problem with slyness and greed. I heard him remark that when one discovers anomalies in the law, one rectifies them. We all know this is not the case and it is not true. When the time comes for the budget, submissions are made by groups representing the disabled, the blind, cystic fibrosis sufferers and so on. I refer to Susie Long, who died because she was sentenced to death for the crime of poverty, as I stated six months ago. This was an anomaly in the health service but we did not rush. It was not just a question of €75,000 here or there or a small sum of €35,000 which we did not notice until two years later; this was a question of life or death. It is not correct to say that we as legislators have shown anything like the same alacrity in ironing out the anomalies that arise when they affect ordinary people but when they affect one of our own, my God, there is a sudden rush of draftsmanship and the introduction of legislation.
This section should be withdrawn for further discussion and I ask the Minister of State to do so.
The motivation behind this section of the Bill should be examined. For the information of Members on the other side of the House, last week I examined the Bill in detail, particularly with regard to sub-prime mortgages. While it is a technical Bill, those of us on this side of the House are well capable of examining such technical Bills.
I question the inclusion of section 16 and the reason this provision was not included in a social welfare Bill. People will be concerned that there seems to be one law for Members of the Oireachtas and another law for everybody else. An anomaly in law exists between the general public and politicians. Coming on the back of events of recent weeks such as pay rises, the people would be right to be sceptical and cynical and there is no argument against it.
I have worked in the public service for a number of years and I have seen people struggle with their pension entitlements, particularly those who were cut off in 1978 regarding co-ordinated and unco-ordinated schemes. I refer to those who for family reasons left the workplace and then returned to work and who have struggled to have their pension entitlements updated. There are many such scenarios. There are a substantial number of anomalies in superannuation and pension schemes for public and civil servants and others outside that area.
There are many anomalies. The key question is whether they will all be dealt with.
We need to know the timeline for the Bill. On the representations made to the Department of Finance, while I accept the bone fides that it was done through Department of Finance officials rather than through the Minister, we need to know how long the Department of Finance had for drafting this and at what stage it decided to include it in the miscellaneous provisions part of the Bill. We need to know that for a number of reasons.
I presume the Department of Finance has had a number of other representations on pension entitlements at the same time. We should ask anybody who has made representations to the Department of Finance for pension entitlements in the past six months or year to draw them to our attention. Those of us in the House, especially on this side, might take them on board. I suggest those people contact us and bring any such representations they may have made to the Department of Finance to our attention so that we can say to the Department that there is one law for the former Minister and another for a person who is not in receipt of his or her pension entitlement because of a similar anomaly. In this scenario the Government will not give a person his or her entitlement but will fast-forward the entitlement one of its own.
I thank the Minister of State, Deputy Batt O'Keeffe, for coming to the House and performing a great service by clarifying the matter in the way in which he has done. Like other Senators, including Senator O'Malley, I had certain reservations and some concern in regard to the possibility of creating a precedent that would specifically benefit one individual on whatever side of the House. The Minister of State has made it clear that a precedent is not being created and that there are relativities at issue. As one who was a teacher for much of my life and who was involved in some trade union negotiations, I am keenly aware that relativities in terms of some levels of employment are important and are embedded in the system of pay and remuneration. I do not think it should be any different for the former Minister in question who, in fairness, has given long and distinguished service. If he is entitled to something he should be entitled to it the same as anybody else, no better or no worse.
No interruption, please, Senator. The Minister of State also has helped us to clarify the position whether this act was one of stealth or otherwise. It is clear the Opposition in the Dáil was not perhaps as wide awake as the Opposition in this House today. Perhaps their forensic or inquisitorial skills were lacking on the day but, quite clearly, they were informed fully and it was up to them to deal with it.
The information was not available.
Obviously they were asleep but Senator Buttimer is wide awake as always.
The story in the newspapers about a garda has been laid to rest. There is no dispute about that.
Senator Norris has praised the media for exposing issues. To a certain extent that is true. Any sub-editor in Ireland seems to think that any story is better if another nought is added to the figure, so that what was 50,000 becomes 500,000. That is part of the course. The Irish Independent headline was way off track.
Fianna Fáil is good at adding noughts.
The Senator without interruption, please.
Certainly the matter did give rise to real concerns on all sides of the House but the Minister of State has laid those to rest for which I thank him.
The former Minister applied for the pension in September 2006. The case was put to the Tánaiste when this Bill was being prepared in March 2007 and a recommendation was made to amend the legislation in line with the legislation covering public and civil servants to do away with the anomaly. The Tánaiste agreed to this. The Bill was published on 20 April 2007 and has been in the public domain since. I refer the Senator to section 16 which clearly outlines what the Minister for Finance intends to do in terms of pensions legislation. It is there for all to see. With courtesy to Opposition Members in the Dáil, they specified the case and asked questions. The Tánaiste and Minister for Finance was transparent in telling them it was part of the Bill and that there is a former Minister who would be given his entitlements under the changes made in this Bill.
Is there anyone else involved?
This section applies also to Ministers who would have been——
Will the Senator allow the Minister of State to finish?
This is a right and an entitlement. I am surprised that people such as my learned colleague would seek to deny the right of an individual to a proper pension. He is entitled to it in the same way as anybody else. Senior civil servants are entitled to it. Deputy Michael Woods was entitled to it. There was an anomaly in the law which he brought to the attention of the civil servants involved. They made a recommendation to which the Tánaiste and Minister for Finance agreed. I specify again that there was no sneakiness. Deputy Michael Woods never made any representations to the Minister for Finance on this issue. He dealt specifically with the Department of Finance, pointing out the inequity in his case as against other civil and public servants. It is important that be put in line. The Government will not withdraw this section.
Two Senators have indicated. We have given the Bill quite an airing having spent an hour and ten minutes on this section alone. I call Deputy Twomey for a brief comment.
There is a retrospective element to this section in the sense that any Minister who served less than three years but more than two years prior to 1993 could also be in line for a pension. Obviously that comes into the equation as well as what we have discussed. The motivation behind all this is quite specific in that one is looking after ministerial pensions and not just for the former Minister, Deputy Woods, whom it may be unfair to name. There may be a few more who will come out of the woodwork, especially those who served less than three years and more than two years.
The Senator should have a word with his colleagues.
The Government is providing the legislation.
One of the funny things is that when the Government is exposed for the codology it gets up to——
——it is considered to be the fault of the Opposition that the Government serves the people so badly. Let us get away from type of nonsense. This section has obviously been slotted in to suit ministerial colleagues. Given that the Government likes to boast about how long it has been in power, its members will obviously benefit most.
As other Senators have asked, are there any other anomalies within the Department of Finance? While I do not want to put the Minister of State's officials on the spot, it is obvious that this section was slotted into this important legislation. Are there any other anomalies in the Department of Finance that should be dealt that? A former Minister has benefited quite substantially from this because he slipped up. No doubt there will be other former Ministers who will look forward to checking this legislation once it goes through the House. The section caters for a defined group of people — former Ministers. Perhaps the Green Paper on pensions is about them looking after themselves even more. We want to know whether there are other anomalies — there clearly are — of which the Government is aware and why they are not being addressed. Why has the Government singled out one of its Members for pampering treatment, which is why we have concerns? The Government claims it is putting Ministers on the same terms and conditions as other public servants. However, that is clearly not the case because a member of the Garda Síochána is a public servant. There were clearly problems regarding the change to superannuation payments in 1976 for a garda dismissed in 1973.
The Senator obviously was not listening.
There are anomalies in the public service that have not been raised with the Government or that it does not feel the need to address. We did our best to accommodate the passing of this legislation because we were told it needed to be passed by tomorrow or else there would be problems for the Government. It might have been clever on its side to try to slip this one through at short notice. Perhaps we should not be so accommodating. We are insulted for not doing our job when we are trying to accommodate the Government with what we are told is important legislation.
I am afraid this is getting sleazier and sleazier. We are now told from the Government side that the Opposition in the Dáil was asleep on the job, that its forensic skills were not up to it and that it was not wide awake.
Senators were told anything but. The Opposition was wide awake and raised the issue.
Senator Norris without interruption.
The Minister of State should check the record. I am not saying the Minister of State said it. He should check the record. That was said by a spokesperson for the Government on the other side of the House. I made notes of it. The Minister of State cannot challenge it. It is on the record.
I made it quite clear they were awake.
The Minister of State may have. I have said he is a decent person who would like to be anywhere but where he is at the moment, for which I do not blame him.
I was giving the Opposition credit.
A speaker on the Government Front Bench less than five minutes ago said the Opposition in the Dáil was asleep, its forensic skills were not up to it and it was not wide awake. That tells us that the Government was doing its damnedest to slip something by. It is obvious. We are not complete eejits in this House, whatever about the other place. I have managed with great difficulty to locate the explanatory memorandum, which states:
Section 16 amends the Ministerial pensions legislation. Currently, a pension is payable if the former office holder applies for it within six months of becoming eligible for it; otherwise, it is payable from the date of application [that is the present state]. This amendment will allow for payment to be backdated to a date not earlier than the date of entitlement.
How, for God Almighty's sake, could it be backdated before the date of entitlement? There may be some arcane reason for it that I do not understand. It is clear that the Government is making a special case to backdate a pension that was not applied for. The explanatory memorandum continues:
It also brings the qualifying requirements for a Ministerial pension under the ‘'old'' (i.e. pre-1993) pension scheme into line with the provisions of the current pension scheme. In effect, it provides for payment of a Ministerial pension to a member of the pre-1993 scheme who has more than two years service as a Minister. This has been the position for members of the current scheme since 2001.
That is a separate item. There is an attempt to blur that by running the two together in what is being said from the Government side. It was interesting to hear the Leader of the House, Senator Donie Cassidy, trying another little rub that will show on the sleaze indicator. He said to the Opposition: "Ask your own crowd. Were they the only ones? Ask your own crowd". In other words, there might be a bit left in the trough for a few Opposition snouts to get to work on. That is the kind of politics we are at. He appears to be laughing at the fact that the Opposition did not notice it going through. It was the Opposition's fault. It was asleep on the job, it did not have the forensic skills and asked the wrong questions. However, he suggests not doing anything about it because there is a bit of gravy left in the trough for the Opposition Members to snuffle around in. I do not regard that as very elevated morality, but who am I?
I reiterate that there is absolutely no sleight of hand. There are a number of miscellaneous provisions in the Bill including this one. On Second Stage the Tánaiste stated:
Section 16 makes amendments to the provisions dealing with ministerial pensions, as follows. First, former office holders — Ministers and Ministers of State — on leaving service are entitled to receive severance for up to two years. Circumstances can arise where, through oversight or otherwise, a former officer holder does not apply for the pension within the specified time period, namely, within six months of severance payments ending. The amendment would give the Minister for Finance the discretion to backdate the payment of pension in the case of an application made outside the six-month limit to the date of entitlement and reflects a similar provision which applies to Civil Service pensions.
In effect——
Does it apply to Irish Shipping?
——the Senator is accusing the audience — thanks be to God we are denuded of an audience — of being dumb, which I would never say.
That is very interesting. The Minister of State has said that thanks be to God there is nobody present in the Visitors Gallery and the public does not know about this measure. That is the way he would like to keep it.
The Senator said that this is getting murkier and murkier. I read out the chronology of events, which is apparent and open. The Tánaiste and Minister for Finance in everything he did was absolutely above board. He read it into the record of the House. It is included in the Bill itself. It was raised in the Dáil. It was dealt with and answered in a positive way by saying that a former Minister is affected.
Why is the Minister of State glad the Visitors Gallery is empty?
The Minister of State without interruption.
There is no sleight of hand here. It is as transparent as could be. I am astonished that the Senator, the upholder of rights, on this occasion would deny the right to a politician because he is a politician.
The Minister of State without interruption.
That is exactly what he is saying.
The Minister of State is wrong.
I have heard everything now.
Senator Norris did not say that.
The question is that section 16——
None of our questions has been answered. I asked if any other anomalies are floating around the Department of Finance.
We are not aware of any other comparable anomaly in the Department at the moment. The garda case is not a similar case in any circumstances.
There is considerable correspondence.
(Interruptions).
Question put.
The Seanad divided: Tá, 26; Níl, 18.
Tá
- Brady, Martin.
- Butler, Larry.
- Callanan, Peter.
- Carty, John.
- Cassidy, Donie.
- Corrigan, Maria.
- Daly, Mark.
- Ellis, John.
- Feeney, Geraldine.
- Glynn, Camillus.
- Hanafin, John.
- Harris, Eoghan.
- Keaveney, Cecilia.
- Kett, Tony.
- Leyden, Terry.
- MacSharry, Marc.
- Ó Domhnaill, Brian.
- Ó Murchú, Labhrás.
- O’Brien, Francis.
- O’Malley, Fiona.
- O’Sullivan, Ned.
- Ormonde, Ann.
- Phelan, Kieran.
- Walsh, Jim.
- White, Alex.
- Wilson, Diarmuid.
Níl
- Bacik, Ivana.
- Bradford, Paul.
- Burke, Paddy.
- Buttimer, Jerry.
- Coffey, Paudie.
- Coghlan, Paul.
- Cummins, Maurice.
- Donohoe, Paschal.
- Fitzgerald, Frances.
- Hannigan, Dominic.
- Kelly, Alan.
- McCarthy, Michael.
- McFadden, Nicky.
- Norris, David.
- Prendergast, Phil.
- Regan, Eugene.
- Ross, Shane.
- Twomey, Liam.
Tellers: Tá, Senators Camillus Glynn and Diarmuid Wilson; Níl, Senators Alan Kelly and David Norris.
Question declared carried.
Sections 17 and 18 agreed to.
SECTION 19.
Amendments Nos. 1 to 4, inclusive, are related and may be taken together. Is that agreed? Agreed
Government amendment No. 1:
In page 20, to delete lines 29 to 35 and substitute the following:
" ‘credit' means a cash loan (whether or not provided on the security of a mortgage or charge over an estate or interest in land), but does not include credit of a class specified in section 3(2) of the Consumer Credit Act 1995;".
The primary purpose of section 19 is to enable the Financial Regulator to regulate and oversee the conduct of business by firms in the non-deposit-taking lending sector, which lend to the general public and to small businesses. It does so by bringing non-deposit-taking lenders engaged in retail lending within the Financial Regulator's authorisation and ongoing supervision regime by way of an amendment to Part V of the Central Bank Act 1997.
As indicated on Second Stage, the technical drafting of this legislation has presented significant legal and technical challenges, particularly in the areas of the definition of credit and retail credit firms. The purpose of amendments Nos. 1 to 4, inclusive, is to address these difficulties in a way that ensures the Financial Regulator can focus as a matter of priority on any activities in respect of which there is a legitimate concern. In addition, it ensures other entities, or credit activities, which are not intended to be the subject of these measures and about which the same concerns do not arise are not inadvertently brought into the scope of this aspect of financial regulation.
To achieve this, "credit" in page 20 is being redefined as credit extended to individuals, including consumers. This captures the core business of the firms that are subsequently defined as "retail credit firms" for the purpose of their regulation. In page 21, I propose to delete lines 6 to 44, inclusive, and in page 22, to delete lines 1 to 11, inclusive. These interpretations are no longer required as they refer to forms of credit now excluded from the definition.
While it may be desirable to have a more comprehensive definition of credit extended to individuals and to encompass retail credit extended to small companies, it is not possible to do so without including a much wider range of wholesale financial transactions, which are not the focus of the current measure. This would also open the risk that the Financial Regulator's time and resources would be taken up in dealing with applications and inquiries from people and firms who are not the objects of the proposed regulation. It would divert the Financial Regulator's resources from the core concern of extending the level of protection available to customers of firms dealing in cash loans and mortgage lending to vulnerable individuals. It could also have the effect of constraining the normal availability of commercial and business-to-business credit provision to the detriment of the business sector and the economy generally.
Several amendments to definitions are required on foot of the necessity to limit the scope to natural persons. The definition of "retail credit firm" in page 22 therefore focuses on firms that are in the business of providing credit, as defined, to individuals. However, it also includes those firms that have, for whatever reason, sought prescription as "credit institutions" under the Consumer Credit Act 1995. This clarifies that credit provided by these lenders — which may be of a wider range than consumer credit — is governed by the general provisions applicable to consumer credit. It is appropriate, therefore, that they fall under the definition included in this amendment. The definition excludes several categories that are otherwise authorised or do not need authorisation on the basis that they do not interact with the primary customer or offer credit to the public.
The amendment on page 22, after line 21, is also consequently necessary to ensure the scope of section 19 is confined to consumer lending. The amendment inserts a new provision to allow the Financial Regulator to exempt from the requirement to be authorised individuals and categories of person whose transactions might in some circumstances appear similar to retail credit but which do not pose any real regulatory or customer protection concerns.
These new definitions will bring non-deposit lenders engaged in retail lending into the regulatory system, particularly those firms and lending business in respect of which regulatory concerns have been raised, in a targeted, effective and proportionate manner without giving rise to unintended adverse impacts. The Department of Finance will continue to liaise with the Financial Regulator as this new regime is implemented and to monitor developments in this area to ensure an appropriate regulatory regime is in place.
Amendment agreed to.
Government amendment No. 2:
In page 21, to delete lines 6 to 44 and in page 22, to delete lines 1 to 11.
Amendment agreed to.
Government amendment No. 3:
In page 22, between lines 16 and 17, to insert the following:
""(c) in section 28, by inserting the following definitions after the definition of “regulated business” (as substituted by paragraph (b)):
‘regulated financial service provider' has the same meaning as in section 2 of the Central Bank Act 1942;
‘relevant person' means a natural person within the State, other than—
(a) a natural person who is, or satisfies the criteria to elect to be treated as, a professional client for the purposes of the European Communities (Markets in Financial Instruments) Regulations 2007 (S.I. No. 60 of 2007), or
(b) a person who is a regulated financial service provider;
‘retail credit firm' means a person prescribed for the purpose of paragraph (g) of the definition of ‘credit institution’ in section 3 of the Consumer Credit Act 1995, or any other person who holds itself out as carrying on a business of, and whose business consists wholly or partly of, providing credit directly to relevant persons, but does not include—
(a) a person who is a regulated financial service provider, or
(b) a person who is an authorised credit intermediary under Part XI of the Consumer Credit Act 1995, or
(c) in relation to credit that was originally provided by another person, a person to whom all or any part of that other person’s interest in the credit is directly or indirectly assigned or otherwise disposed of, or
(d) a person who provides credit on a once only or occasional basis, but only if the provision of the credit does not involve a representation, or create an impression (whether in advertising, marketing or otherwise), that the credit would be offered to other persons on the same or substantially similar terms, or
(e) a person who is exempted, or who belongs to a class of persons that is exempted, under section 29A from being required to hold an authorisation as a retail credit firm;”;”.
Amendment agreed to.
Government amendment No. 4:
In page 22, between lines 21 and 22, to insert the following:
"(d) in Chapter 2, by inserting the following section after section 29:
"29A.—(1) The Bank may exempt a person from being required to hold an authorisation as a retail credit firm in relation to the provision of credit if, in the opinion of the Bank—
(a) the total amount or value of the credit that is to be provided by the person is such that it is reasonable to assume that the borrower will be in a position to negotiate on equal terms or to obtain appropriate legal and financial advice, or
(b) the person is one who, under section 8(2) of the Central Bank Act 1971, is exempted, or is a member of a class of persons that is exempted, from being required to hold a banking licence, or
(c) the person is one who provides credit solely for charitable or public purposes and at a rate of interest or on other terms more favourable than those that are currently available commercially,
and the exemption would not be inconsistent with the proper and orderly regulation of the provision of credit and the protection of customers of retail credit firms.
(2) The Bank may also exempt the persons belonging to a specified class of persons from being required to hold an authorisation as a retail credit firm in relation to the provision of credit if, in the opinion of the Bank—
(a) the total amount or value of the credit that is to be provided by those persons is such that it is reasonable to assume that borrowers from those persons will be in a position to negotiate on equal terms or to obtain appropriate legal and financial advice, or
(b) the persons are ones who, under section 8(2) of the Central Bank Act 1971, are exempted, or belong to a class of persons that is exempted, from being required to hold a banking licence, or
(c) the persons are ones who provide credit solely for charitable or public purposes and at a rate of interest or on other terms more favourable than those that are currently available commercially,
and the exemption would not be inconsistent with the proper and orderly regulation of the provision of credit and the protection of customers of retail credit firms.
(3) The power to exempt a person, or the persons belonging to a specified class, from being required to hold an authorisation as a retail credit firm may be exercised by the Bank either on its own initiative or on an application made by or on behalf of the person, or the persons or any of the persons belonging to that class.
(4) An exemption granted under this section is subject to such conditions as the Bank thinks fit to impose.
(5) The Bank may at any time by notice in writing—
(a) impose additional conditions on a person to whom, or on the persons belonging to a class in respect of which, an exemption has been granted under this section, or
(b) vary or revoke a condition imposed under subsection (4) or this subsection.
(6) The Bank shall revoke an exemption granted under this section if it is satisfied—
(a) that the circumstances relevant to the exemption have changed and are now such that the exemption would no longer be granted, or
(b) that a condition of the exemption is not being, or has not been, substantially complied with.
(7) The Bank shall publish inIris Oifigiúil a notice of every exemption granted, and every revocation made, under this section.
(8) Failure to comply with subsection (7) does not affect the validity of an exemption granted, or a revocation made, under this section.
(9) Section 29(1) does not apply to a person who, or a person belonging to a class of persons that, is exempted under this section so long as the person—
(a) does not carry on any kind of regulated business other than that to which the exemption relates, and
(b) complies with all conditions subject to which the exemption is granted.”;”.
Amendment agreed to.
Question proposed: "That section 19, as amended, stand part of the Bill."
I am sure it has taken weeks for officials in the Department of Finance to correct this legislation. We, however, are expected to figure out what is involved in 24 hours. It will not be surprising if other difficulties arise in due course, even though we are supposed to have debated the Bill thoroughly. We are in the dark on many aspects of the legislation. It is disturbing to see Ministers coming into this House to propose that entire sections should be deleted.
The store cards offered by many large retail stores are effectively a form of credit for regular customers. Will these stores be required, under this legislation, to obtain authorisation from the Financial Regulator before issuing such cards?
Subsection (7) of section 29A, as inserted by amendment No. 4, states that lending institutions must "publish in Iris Oifigiúil a notice of every exemption granted, and every revocation made”. However, subsection (8) goes on to state that failure to comply with subsection (7) “does not affect the validity of an exemption granted, or a revocation made, under this section”. This is contradictory. What is the point in asking banks to publish notice of exemptions or revocations if there is no sanction for not doing so? Either subsection (7) or subsection (8) should be deleted so that the requirement is necessary or it is not. It may actually work that way. The excuse may be used that there may be an oversight on the bank’s behalf in informing the relevant authorities and the exemption should be allowed to stand. Why was the section put in this fashion?
I regret that it is very difficult for me to examine this matter deeply because I am unsure of what currently stands. We should have had a wider debate on the matter but this is the last time it can be discussed before it must go through the Dáil later this afternoon. This is another indication of legislation being dealt with badly, which is ridiculous.
Store credit cards and the transparency of the terms are covered by the Consumer Credit Act. With regard to the Senator's point on publication in Iris Oifigiúil, this ensures legal certainty of an exemption or revocation.
There is no compulsion on the banks to publish the notice.
Under the terms there is a compulsion on the banks to do so.
If they do not, it does not affect the exemption.
What does the Senator mean by that?
If the banks do not bother to publish the notice, there is no effect on the exemption.
I imagine that would come under the regulator's remit, if it had to take issue with the banks.
It is a contradiction. There is a compulsion to publish the notice but if it is not published, it does not matter.
If an oversight is discovered, they have to publish.
Subsection (8) of section 29A as inserted by amendment No. 4 indicates that if the notice is not published, it does not matter. That is my reading of it.
Yes, that is the way it reads.
I am being told that although it does not affect the legal——
It does not affect the banks.
If the banks continue with the status quo, the legislation can be dismissed by them because they are still protected. Why are we bothering putting in place legislation that is supposed to give information to us as legislators and the public, but if the banks keep us in the dark, as we have been in recent days, it is fine? That is my basic reading of the section but perhaps my interpretation is wrong. If there is a compulsion to publish the notice, the exemption should not stand until it is published.
I am told that relates to the Central Bank and does not concern commercial banks.
Question put and agreed to.
Sections 20 to 25, inclusive, agreed to.
Title agreed to.
Bill reported with amendments and received for final consideration.
Question proposed: "That the Bill do now pass."
Before we finish up I wish to point out that at all times we attempted to facilitate the Government in getting this legislation through as quickly as possible because of the very important deadline of tomorrow. It will be important legislation in the financial regulation of our economy and we fully endorse many of the sections in the Bill. We are disappointed the section dealing with ministerial pensions was pushed in such a fashion and we were not given the clarity we wanted on it. We would have preferred to have had more time to debate it further to see if we could have supported the Government on the issue. I regret that we had to vote against the Government in trying to get this legislation through. There was a good reason for it.
I thank the Senators who attended the debate and the Whips for giving priority to the Bill. As has been mentioned, sections 5 and 8 are stated in the text to have effect as of 1 November next and, therefore, this Bill must be enacted by that date. The Seanad amendments will go to the Dáil today for debate and a motion for early signature is down on the Seanad Order Paper for 7.10 p.m. today.
I thank all the officials for their work, especially the staff of the Houses of the Oireachtas. From the Government's perspective, we have acted at all times with probity and in a transparent manner to ensure the rights of individuals, be they politicians or ordinary persons, are upheld at all times.
Question put and agreed to.
Sitting suspended at 2.10 p.m. and resumed at 3.15 p.m.
