I welcomed the Minister's insertion that if a couple are separated the interests do not have to be declared. I am glad I received some agreement on my contention that, in the case of one cohabiting with another, that interest should be declared. There was some discussion but I do not think the Minister replied.
SECTION 2.
Debate resumed on amendment No. 8:
In page 9, subsection (1), line 12, after "person" to insert "but does include a person who cohabits with another".
—(Deputy Currie.)
I replied in some detail yesterday. I do not wish to add anything.
Is it the case that somebody whose wife or husband is separated from them does not have to make any disclosure in relation to their affairs and somebody who is cohabiting with somebody else as a long term spouse is to be exempt from any registration or declaration? This is an extraordinary state of affairs.
Is the amendment being pressed?
The situation also exists that disclosure of interest must be made by a person who is described as a connected person. A connected person means first degree of kindred. The relationship with a cohabitee in many instances is much closer than that with a brother or sister. However, those interests must be declared. I fail to see why the interests of a cohabitee in circumstances that are not as Deputy Connolly described yesterday, a bird of passage, should be exempt. I am sorry Deputy Connolly is not here, although he said he would not be here. On occasions, I wonder if he lives in the real world. Some of his comments yesterday confirm my view that perhaps he does not.
Remarks such as those, in the absence of a Member, are not appropriate.
Absent or present, I think the Deputy would take those remarks in the spirit in which they are intended. That is a compliment to him.
I am a little aggrieved with the Minister. Some strong points were made on this matter. However, she did not respond to all the points raised yesterday in the same way as she has not responded to comments that are worthy of reply on a number of occasions during Committee Stage.
I support Deputy Currie's amendment. The Bill states:
"spouse", in relation to a person, does not include a spouse who is living separately and apart from the person;
This means that if someone is separated there is no obligation on them to declare the interests of that person because they probably are not sharing in the benefits of those interests. Surely the reverse must stand. In view of the fact that there is no divorce in Ireland, there are many couples living in permanent relationships. The Minister is aware that in other areas the State takes into account cohabitees and the benefit they might bring to a household. For example, if a person who is a tenant in a council house, is living with someone, the income that person brings into the house will be used to decide the rent and to determine social welfare benefits.
This amendment seeks to ensure that there will be no discrimination against people who are joined by the bond of matrimony and who call the person they are living with a spouse. However a person who is living with another who has an interest in the business will not have to make a declaration because they are not a spouse. People should be required to make a declaration under the heading of a spouse or people living together in a permanent relationship or it should be taken out of the Bill. It could be argued that what my husband does or does not have should not influence my job as a TD. However, if spouses are included, it makes sense to include a permanent cohabitee.
The term "relative" in section 2 means "a brother, sister, parent or spouse of the person or a child of the person or of the spouse". For the purpose of this Bill, a child of someone, from whom one is separated, or a stepchild, of whom one is not the parent, is considered to be a relative and, therefore, a connected person. However, a person with whom one lives for one's life is not considered to be a connected person. This is absurd because it could mean dealing with 44 year old stepsons and stepdaughters, but not with the person with whom one lives. That is a crazy situation and does not reflect the real world. We do not live in a world where a 40 or 50 year old stepchild of a Minister aged 60 or 70 must be regarded as a relative while, at the same time, not considering a man or woman who lives with a younger and more active Minister. That is an extraordinary situation.
Part of the amendment is logical. However, it discriminates against those who play it straight. I am not moralising or preaching about how people should live, but the law should not favour those who do not conform to what we regard as the norm in society. If the law is giving a reward or the benefit of the doubt, it should be to those who play by what we regard as normal standards. It should not favour those who do not conform to the normal conditions of society. I did not hear the Minister's comments yesterday, but the wording seems strange. Perhaps she will repeat what she said for the benefit of those who missed her words last night. It seems strange to reward people who are not living in a married state.
The Minister gave a detailed reply last night.
She did not.
She spoke at some length but not in detail.
The Minister has given a full reply but the Deputies are repeating what was debated last night for an hour and a half. I would appreciate if we could discuss the amendment without being repetitious.
Deputy Noel Ahern knows I tabled a similar amendment to the Finance Act, 1994, and did so for a number of years, because of the way the tax code discriminates against people in this situation in comparison with the social welfare code, which treats them differently and regards two people in these circumstances as being married. However, the tax code does not regard such people as being married.
I support Deputy Currie's amendment. I thought the Minister would have taken it on board, but would have quibbled with the wording. Deputy Connolly has a point about the birds of passage as it could not apply to what he described, on another famous occasion, as a mobile situation. Where cohabiting is a more permanent relationship — and I presume it is intended to mean that — and if some of the persons listed are encompassed by the Bill, I cannot see why — having regard to the denial of the right to remarry in this jurisdiction, which reflects an Irish fact of life — the same provisions of the Bill cannot apply to someone in a permanent relationship with an office holder as they would to someone in a first marriage.
Has the Minister anything to say about this issue?
The Minister said she has nothing further to say.
A number of points have been raised. The point made by Deputy McDowell——
Are you pressing your amendment?
I will press it because of the arguments made by the Minister.
As there are fewer than the maximum number of Members present, under Standing Orders we are obliged to wait eight minutes, or until all the Members are present, before proceeding with the division.
Amendment put.
The Select Committee divided: Tá, 10; Níl, 14.
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Tá |
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Boylan, Andrew. |
McDowell, Michael. |
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Connaughton, Paul. |
McGinley, Denis. |
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Currie, Austin. |
McGrath, Paul. |
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Finucane, Michael. |
Owen, Nora. |
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Harte, Paddy. |
Rabbitte, Pat. |
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Níl. |
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Ahern, Michael. |
Kenny, Seán. |
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Ahern, Noel. |
Nolan, M. J. |
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Bree, Declan. |
O'Leary, John. |
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Broughan, Tommy. |
Penrose, Willie. |
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Ellis, John. |
Smith, Brendan. |
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Fitzgerald, Eithne. |
Upton, Pat. |
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Hilliard, Colm. |
Walsh, Eamon. |
Amendment declared lost.
I move amendment No. 9:
In page 9, subsection (2) (b), line 43, to delete ", has" and substitute "has".
This is a technical amendment deleting a comma in the legislation.
Where is the comma?
The comma is before "has".
Is the comma after the inverted commas?
Yes, it is a typing error.
We can agree to this.
Amendment agreed to.
Can the Minister make available to Deputies Currie, Rabbitte and myself the document from which she quoted last night?
Do you wish to reply, Minister?
I will be subject to your guidance as to whether the subject is in order, Chairman.
The Minister does not have to reply if she does not want to.
The Minister quoted from a document last night and we asked to see it. She said she would come back to us and tell us whether we could see it. She is now indicating that she does not propose to say if we can see it.
The Minister did not give a commitment last night that she would give it to Members.
No, she said she would tell us whether we could see it at a later stage.
She did not give a commitment.
I accept that, but she said that at some stage she would tell us whether we could see it. Are we going to see it?
We are not going to finish the Bill tonight.
I do not mind an amendment about a comma, but I am not prepared to go any further with Committee Stage unless I know a number of things which I indicated in a letter I sent to the Minister today. I want to know where we stand on a number of issues and what the Government position is in relation to those issues.
I have checked with the rulings of the Chair in the Dáil and it appears that if a Committee of the Dáil makes a decision to accept an amendment, it is not open to the Members of the Committee later on Committee Stage to put in an amendment which is inconsistent with the amendment which has already been accepted. Therefore, if any change is made in this Bill now we are committing ourselves for the rest of the Committee Stage to operating on the basis that it cannot be reversed.
I sent the Minister a letter today asking her to respond to issues which were raised yesterday. The constitutionality of what the Minister is proposing was raised yesterday and the Minister responded that interesting questions had been raised for her. She indicated — and this I find extraordinary — that these matters could be solved between now and Report Stage, as if it is all right to make mistakes because there is another occasion on which they can all be put right. I believe it is the obligation of Government, which has the office of the Attorney General available to advise it in these matters, to come before this committee and indicate whether the proposals in question are consistent with the Constitution. It is not permissible for any Minister or Member of the House to say they are putting a proposal forward which may or may not be constitutional, but that we can have a go at it anyway and if it is not, the House will find out about it later.
We are all under a duty to uphold the Constitution. Either a proposal coming from a Minister or any other Member is consistent with the Constitution or it is not. I have asked the Minister questions which relate to the constitutionality of certain proposals in the Bill. I have asked her, since she relied on this document yesterday saying that it answered some of our worries, whether we could see it. I have also asked her to get legal advice in regard to an issue which she raised the other day and on which I believe she is also wrong, to come before the committee and indicate whether the position she gave off the cuff is right or wrong on the basis of the best advice available to the Government.
If it comes to us, Chairman, it is as well that those who advise the Chair should be aware of this as well. We are not prepared to go on with a Committee Stage in which there is complete indecision and a lack of accountability on the part of the Government as to whether what is being proposed is or is not consistent with the Constitution. We must have clear answers from the Minister. She said yesterday that these were interesting points. We must have responses on them tonight and on the document in particular.
She said yesterday that she would come back to us and tell us if she would give us that document so that we could examine it and be acquainted with what Cabinet procedures. She is now refusing to make this document available to us and she is refusing to say whether she will, during Committee Stage, make it available to us. I object to that. We are being treated very arrogantly.
Chairman, I sought your guidance as to whether this was the appropriate stage to respond to points raised by Deputy McDowell which refer to section 14 of the Bill.
What we passed yesterday was a definition of the performance of the functions of a member of the Government. That definition is in itself constitutional. Subsequent to yesterday's discussions I have sought further legal advice and I am happy to inform the committee that I am satisfied there is no constitutional shadow over our proposals in relation to section 14. The normal procedure, I am sure Deputy McDowell knows this very well, is that any proposals or amendments tabled come through the Attorney General's Office, come through experienced parliamentary draftsmen and are cleared by that Office as being consistent with the Constitution.
I may not always have available to me here for the committee the full range of legal advice on which constitutionality is based, but no Government puts forward proposals to a committee of the House, or to the House, that they do not believe following careful examination, are in conformity with the Constitution. If the Chairman feels this is the appropriate time, I will deal with points raised by Deputy McDowell last night.
Deputy McDowell raised a number of specific questions in relation to amendment No. 5. Since then he has written to me amplifying his questions in detail. Simply put, he asked whether, having regard to the Supreme Court decision in the case of the Attorney General v.Hamilton, the Minister could be obliged to furnish a statement of material interest to the commission in respect of his or her exercising a function as a member of the Government. He also queried the extent to which the commission could follow up on such statements or investigate complaints made in respect of the performance by Ministers of their functions as members of the Government.
I can reply very simply to the points made. As a preliminary point, Deputy McDowell should be aware that the proceedings of the beef tribunal both before and after the Supreme Court judgment demonstrated clearly that neither the formulation of proposals to Government, the content of Government decisions nor the implementation of those decisions by office holders are covered by the doctrine of Cabinet confidentiality. In no sense does referral of an issue to cabinet absolve a Minister of the functional responsibility.
I have taken legal advice on the matters raised by the Deputy and I can assure him and the committee that nothing in the Supreme Court judgment prevents the furnishing of such statements to the commission, nor can that judgment be used as a defence against the non-furnishing of such statements by Ministers.
In the event of a complaint, the commission will be fully entitled to investigate whether such a statement was furnished, and to report fully the outcome of that investigation. Even in the absence of a complaint, the commission will be entitled under section 26 to cause a report to be laid before the Houses where, for example, notwithstanding that the necessary disclosure was made, the commission is concerned about a matter of substance. In all these scenarios it would be open to the commission to include a copy of a statement furnished by a Minister in any report whether on foot of an investigation under section 23 or in a report under section 26.
Deputy McDowell's points have been answered by the legal advice I have got. They were interesting points and I have received legal advice from the Attorney General's Office. I am satisfied that the proposals we have already adopted and the proposals which remain before the committee under section 14, which is the appropriate place to discuss them conform with the Constitution. I wish to allay any apprehensions the committee may have had in that regard.
A number of Deputies have indicated that they wish to speak. I will take them in order.
I am glad the Minister has replied to some of the points raised here yesterday and in the letter from Deputy McDowell. I will leave him to deal with that as it is his letter. I note the Minister has not responded to the request made by three of us here yesterday evening in relation to the document about instructions for Cabinet Ministers. That request was made by Deputy McDowell, Deputy Rabbitte and myself. That was the document from which the Minister read and when she was asked what it was, she said it was the instructions given to members of the Government on taking office. Members then asked if it would be possible to see this document and she promised to consider it. When will the Minister respond to this request?
The committee should be advised if the Minister intends to answer yes or no to a simple question.
The Minister has outlined the present position. I am not a constitutional lawyer, unlike Deputy McDowell, but there appears to be a difference between the deliberations of a Cabinet of office holders and the functional operation by these office holders. The Minister has indicated the exact scope of the operation of the regulations she is seeking to introduce.
In view of the context of the debate by the committee yesterday evening, is this a filibuster by conservative Deputies who may have especially important reasons not to have this much needed legislation become the law of the land?
Will the Minister clarify the distinction she draws in the decision to be made by the beef tribunal and the interpretation that it is permissible to transfer to a third party the preparations or content of a decision or whatever, since implicit in the point that is raised is the ability of the commission to inquire into and behind a decision giving rise to a complaint? The only purpose behind relaying information to the Commission following a complaint arises from its ability and capacity to get behind the discharge of the function of the Minister. This must impinge on the area covered by the decision to be made in the case of the beef tribunal as, in this instance it is not possible for the commission to get behind the decision.
The commission exists in the sense that it is a court of appeal for complaints which may be made against an office holder. The Minister's advice is that it would be possible within the terms of the constitutional decision to have information referred to that commission, but if the situation arose where the commission had to inquire into the complaint, it would be debarred from doing so. Will she clarify this point?
I am not prepared to become involved in a lengthy constitutional discourse. The scope of the Supreme Court judgment is quite narrow and relates largely to the deliberations of the Cabinet. The discussion around the Cabinet table is therefore constitutionally privileged, but a statement made by a Minister declaring an interest in a matter can be sent to the commission and an inquiry can be made as to whether such a statement was or was not made. Decisions made by the Cabinet are not covered by the judgment and come within the public domain, otherwise, for example, the Government's decision on its budget package would be a constitutional secret, which would be ludicrous.
The committee is considering the situation where people make statements on matters about which decisions have been made. My legal advise is that the proposals in the Bill are constitutionally sound and the committee need have no concern that statements made would not be available to the commission. They can be available, and the commission would, therefore, be entitled to investigate those statements and whether a decision was made. The commission is not entitled to investigate the content of discussion around the Cabinet table. These issues effectively arise under section 14 of the Bill.
The Minister still has not answer my question.
There is a complete refusal to answer Deputy Currie's question for some reason.
While I accept the advice by the Minister of State regarding the constitutionality of the position, I am long enough in the Oireachtas to know that similar undertakings given by successive Ministers were often proven later to be unconstitutional.
The Minister's remarks have confused matters even further. Regarding the proposed commission, Deputy McDowell's letter asks if it will ever be able to inquire as to the nature and extent of disclosure to Cabinet colleagues as to the interested Minister's participation in the discussion or decision? Cabinet decisions are collective, and when one is made nobody knows whether a vote was called on it.
The Minister is aware that there is a precedent in the Dáil, invoked many times since the Supreme Court decision, where the Taoiseach has refused to answer questions on the basis of the decision and Cabinet confidentiality. Given this, what is the point in establishing the commission under section 26 of the Bill and granting it the power to ask a Cabinet Minister if a Minister's declared an interest, but refusing it the power to ask, if the answer is in the affirmative, if that Minister proceeded to vote and participate in changing people's minds on a debate or aiding it in some way?
It is a farce to suggest that under section 26 of the Bill the commission can undertake any such report and then use this as a defence against the doubts cast by the Supreme Court as to whether a Cabinet Minister will ever be subject to any kind of investigation. The Minister is aware that if a Member of the Opposition or of the Government of the day attempts to raise such an issue in the Dáil, the Ceann Comhairle will advise that a commission has been established under section 26 of the proposed Act and will forbid further discussion in the House.
If a matter goes to the commission, there will not be an opportunity for debate, and the Minister's advice to the committee this evening has not clarified the questions raised by Deputy McDowell. On a point of order, not having a legal mind I was unable to absorb the points of the Minister's reply as she read it very quickly. Therefore it would be useful if the reply was circulated to Members of the committee.
The Minster has not clarified if the commission has the power to investigate fully an allegation made regarding Ministers participating in decisions where they had a material interest. If a complaint is made against a backbencher, a full investigation can be made either to exonerate or find him or her fully culpable. However, there may be a way out for Ministers in this regard, and there have been some examples of this. The Taoiseach has refused to answer questions in the Dáil as to whether he participated in a debate which was said to have taken place at Cabinet level regarding the investment of £1 million and the granting of a passport because of Cabinet confidentiality. How would the commission investigate this issue if it is not clear whether the Supreme Court decision protects Cabinet confidentiality in this way?
Does the Minister wish to make any further comment.
No. I wish to proceed by moving amendment No. 10.
On a point of order, the Minister is refusing to answer Deputy Currie's question and to state whether she will give the committee the document from which she quoted yesterday. The committee is entitled to an answer. This is a Parliament; it is not a criminal trial. We are entitled to a fair answer to the question of whether that document will be made available to us, before we go any further with any of the other constitutional issues that arise.
I will answer that in the discussion on amendment No. 10.
On a point of order——
Deputy Currie, the Chair does not have the right to compel anybody — Minister, Member or anybody else — to reply to any query that is raised.
I am aware of that and I put my question to the Minister, not to you.
Deputy Currie, the Minister has told the committee that she has given all the explanation she is going to give at this time and that further explanation will be given in the course of the Bill. That has been made quite clear. She has now moved amendment No. 10.
We were still dealing with my point of order, on which you have not yet ruled, when the Minister announced what she proposed to do. She was not invited to move amendment No. 10.
Deputy McDowell, with all due respect——
I do not mind. We will go on to amendment No. 10 and if the Minister wants to invite a filibuster she will have a filibuster, but we are not filibustering now. We are demanding fair answers to fair questions.
I think it is important here——
Sorry, you are moving amendment No. 10. Get on with it, if that is what you really want. I still want an answer to my question. We are being bullied by a Minister and we are entitled to fair answers.
(Interruptions.)
Deputy Hilliard and Deputy McDowell, there is no need for any crossfire. The Minister and I are capable of defending ourselves if need be. The Minister has already given a detailed explanation on a number of the points raised, though maybe not to the satisfaction of some Members.
Excuse me, Chairman. I indicated that I wanted to speak on what the Minister said. She then proceeded to move amendment No. 10, but I am entitled to speak.
If it is going to lead to faster progress I am sure the Minister will not have any objection to you making a short comment, but it does not necessarily mean that she will want to reply. However, it might help to expedite the matter.
Chairman, it is not——
Deputy McDowell has intimated that he wishes to make a short comment and we will allow him to do that. Then we will move on to the amendment which the Minister is moving.
I would like to make a short comment too, Sir.
Some of the short comments that have been made, with all due respects Deputy Currie, have been rather long winded.
Many of my comments have been very short, much shorter than others.
I would like to make a short comment also, Chairman.
I have given Deputy McDowell the courtesy, being a spokesperson.
I said it was a short comment.
If you want to make it, we will allow you the courtesy of doing that. Deputy McDowell wants to make a short comment.
I want to inquire whether, if at a Cabinet meeting, one Minister were to make a proposal which would materially benefit another Minister, or in which another Minister's material interest is involved, the latter Minister who stands to benefit is obliged to report that fact to the commission. Yes or no? If it is within the passive, interested Minister's actual knowledge that he or she stands to gain by a decision coming up at Cabinet, is it obligatory on that Minister to report the fact? All that requires is a simple yes or no answer. It is crucial to any further steps we take on this Bill that we get that yes or no answer.
My second question also deserves a simple yes or no answer. Will the commission be at liberty to ask any Minister whether he or she participated in a Cabinet discussion on a matter in which he or she had an interest. Yes or no. These are simple issues and no amount of hiding behind the memo she has in front of her will change that. The memo claimed, on its face, to be simple but it did not answer those basic questions.
Third, can the commission ever ask any other member of the Cabinet whether he or she was informed by a Minister of the nature and extent of an interest when they participated in a Cabinet discussion? Fourth, am I right that the only issue on which the commission is competent to inquire is whether there was written notification of the Minister making the proposal to the Cabinet? Yes or no.
Does the Minister wish to reply or does she wish to hear Deputy Hilliard first?
I will hear what he has to say.
My comment will have very little to do with the questions that have been asked by Deputy McDowell. For any Member of this Committee to say to a Minister, "get on with it, Minister", in the manner and tone just used, shows a complete disrespect for law and authority from a gentleman such as Deputy McDowell. I may not contribute much to these Bills, but it was very insulting to hear that comment and that type of attitude. It shows a complete lack of respect from a Member of Dáil Éireann to a Minister of the Government.
Many things were said in the heat of the moment, Deputy.
On a point of order. The Minister purported to evade answering the questions on the basis that she——
I know what you said.
Would Deputy Hilliard let me finish? — on the basis that she had already moved the next amendment. I said that if that was her attitude — and I am saying it again — she should have got on with amendment No. 10 and not dallied and made further remarks about the previous matter.
It was dictatorial.
It was not dictatorial.
The Minister wishes to make a short comment and then we will move to amendment No. 10.
If you remember, you said you would let me make a short comment.
If you wish to make a short comment, please do so.
Nobody is automatically entitled to respect on this Committee or anywhere else. We have to earn respect.
With all due respect, Deputy Currie, we are all entitled to a certain amount of respect. There is no need for people to go over the top. The remark that nobody is entitled to courtesy here——
I said that nobody is automatically entitled to it, they have to earn it. There is nothing wrong with that remark. I will put it in context. Three Deputies here, spokespersons for their parties, yesterday requested information from the Minister relating to a document from which she quoted in this committee. The Minister said this document related to the regulations under which Cabinet Ministers operated. It appeared to us that this was an important document and we requested her to find out if she could make copies of it available to this committee. She has not told us yes or no.
I want to ask a different question. I am not really interested in the cosmetics of setting up a commission for the sake of it, so that there is somebody to whom we can refer a complaint. You might as well go and visit the Ceann Comhairle in his offices and tell him about your troubles. The purpose of the questions I raised yesterday was to establish from the Minister where it is going. Can the commission effectively inquire into a serious complaint, for example, if a Cabinet Minister's business was running into trouble and he caused a decision to be made that conferred some assistance on him? I know the commission can be told that the Minister advised that he had a material interest in the matter, but what happens after that if the decision was made anyway from which he derived a benefit? Can the commission establish that? This is neither a filibuster nor an academic point. I can see no difficulty about a situation where a Minister could conform to the procedural requirement——
A two line letter.
——and write his little note saying: "Dear Taoiseach, I would like you to know that I have a material interest in Item 9 on the Cabinet agenda tomorrow morning". That document could subsequently be furnished to the commission. But suppose there are complaints arising from the decision that will subsequently become known. Can the commission satisfy the complainant that a reasonable investigation has been conducted and can he or she find out how the decision was made? Otherwise the issue is academic. The commission to be established is intended to be a safety valve but will only be a cosmetic dressing or a fig leaf, to use Deputy Currie's term, to which one can refer complaints. Because the commission contains fine, upstanding, eminent personalities, we are supposed to be reassured that nothing improper transpires.
I do not wish to show discourtesy to the committee. We need to tease out and discuss this Bill, which is complex and detailed. I have been confused procedurally. This is not Question Time. We are dealing with section 2 and amendments to it. Reference is being made to many issues which are relevant to sections 14 and 26 and other sections. I am confused as to what is an appropriate subject for debate at this stage. I will be happy to debate these issues when we come to the relevant sections.
I am anxious to clear up any feelings the committee may have that the Bill's terms are not constitutional. I have taken legal advice and am satisfied, based on both the detail of the Bill and the fact that I have a stamped and certified copy from the Attorney General, that its terms are constitutional. I did not deal with Deputy Currie's point because I want to proceed with the Bill and deal with each section when we come to it. I will give him the courtesy of a reply and I will then deal with amendment No. 10.
Statute law supersedes any written instructions which can be made from time to time by any Government. The Bill we are debating and which in due course will be passed into law contains the important points and key issues. My point yesterday was that there is nothing exceptional about what is being proposed in the Bill. The requirement that an office holder discloses an interest where it arises in a matter before the Cabinet is long standing.
Yesterday I put the relevant section of the current Cabinet procedure instructions on the record of the committee. Following its deliberations, I made inquiries about these instructions. As I said yesterday, I cannot make decisions in this area as I am not a member of the Cabinet. It has been the practice of successive Governments not to publish Cabinet procedures and it is not proposed to depart from this. There is no mystery in this area. The current instructions are the same as those which have applied for over a decade, that is the 1983 instructions. They are the same as those adopted by Administrations in which Fine Gael and the Progressive Democrats participated. I have put those instructions on the record of the committee.
With equal courtesy, I thank the Minister for her reply. If these regulations cannot be published, why did she read into the record an extract from the regulations?
She did not read an extract but gave the committee an outline of the position.
She read an extract and was asked immediately afterwards from what she was quoting, which was supplied to her by the person sitting on her left.
I am totally confused.
I am not confused.
How does the Deputy know that what the Minister read is an extract from the regulations if he has not read them himself?
I know because the Minister said it was an extract. I am giving the Minister the courtesy you asked me to give to her, which is to accept the explanation she gave at the time. She was asked what she had read and she replied that it was an extract from the regulations. If these regulations, as we are now told, cannot be published and made available to Members, why was an extract read into the record and why can we not see the rest of the regulations to see if the extract the Minister quoted was in context?
I asked the Minister four questions which only require yes or no answers. Deputy Rabbitte asked her a question which also only requires such an answer. We received no replies. This is not Question Time. We are trying to work out what the Bill actually means.
Line by line examination.
The rule on Committee Stage has always been that people respond to questions put to them; they do not say they will deal with them in two weeks, a month, or whatever.
I move amendment No. 10:
In page 9, subsection (3), lines 46 to 48, to delete "(being a person who holds a designated directorship of, or occupies a designated position in, a public body, or a special adviser)".
This is a drafting amendment. The deletion means that this subsection applies to all persons. It standardises the definition of material interest for the purpose of making ad hoc declarations under section 14 covering office holders, section 16 covering directors, section 17 covering those holding designated positions of employment and section 18 covering special advisers. A substantively similar definition is used in section 7 which deals with declarations of interests in Oireachtas proceedings.
Originally the Bill was proposed to cover persons who had material interests in a matter and held designated directorships or occupied designated positions in public bodies or as special advisers. We should be clear about what the Minister is saying, which is that a Minister or a Secretary of a Department was not covered by the original section but is now covered.
That is not what we are saying. We are saying that instead of defining this at different points throughout the Bill, we are defining it in one place so that we do not have separate definitions.
Does section 2 (3) apply to a Minister or a Secretary of a Department?
It does.
How can it?
The original subsection did not apply to Ministers.
That is what I was saying.
That was defined in section 14 (2). We are inserting it all in section 2 (3) so that this definition includes Ministers, which it previously did not. Ministers were dealt with in a different section. It is a technical amendment to tidy up section 14 (2).
We should look at the consequences of this before we agree to it. Was there a difference between the definition of an interest in section 14 (2) and this one? Is the definition being widened or narrowed?
It is essentially the same. The amendment is a drafting and tidying up one.
Mr. McDowell
Section 14 (3) states that:
References in this section to the performance of a function of the office of an office holder are references to the performance of the function by the office holder personally or by another person in pursuance of a direction given to the person by the office holder personally or by a person acting on behalf of and with the actual knowledge of the office holder.
Does this apply to the new definition?
Is section 14 (3) being eliminated?
No.
Is section 14 (2) to remain?
We are proposing that, rather than defining material interest separately for office holders in section 14 (2) and separately for others in section 2 (3), we define it the same way for everybody. It is actually just a technical amendment with no hidden strings.
Do sections 14 (2) and 2 (3) stay? The Minister is saying that section 14 (2) defines material interest for office holders and section 2 (3) covers people other than office holders. If all the definitions are being put together — which seems a practical way of doing it — it presupposes that she has recommended the deletion of the definition at a later stage. She has just told Deputy McDowell that section 14 (3) is staying.
Section 14 (3) is staying.
A new section 14 has been inserted.
Yes, and that provision is included. We are saying in section 14 (3) that if I, as a Minister, instructed a member of my staff to do something——
That is the only added definition?
——it is deemed to be the same as if I was doing it myself. Therefore, I cannot evade my responsibilities by asking one of my staff to do something.
Why does that not apply to anybody else?
I think there is some confusion here.
If section 14 (3) is necessary, why does it not apply to other office holders?
Why does it not apply to people who are not office holders?
We are dealing with the doctrine of corporation sole. However, people will also be designated in terms of designated directors. We will get to that when we look at the designated directors.
Hold on for a second——
We are not yet dealing with the section on performance of functions. This section deals with material interest. A material interest, in other words a possible conflict of interest, arises where somebody in public office or employment, or a connected person, stands to benefit personally from the performance of the duties or functions of that office or employment. However, this does not mean benefiting in a very general sense by being somebody's spouse, parent or whatever——
I appreciate that; we know that.
Why should the Secretary of a Department not get somebody else to act for them?
That is a different point.
No, it is the same point.
No, it is not the same point.
If you are saying that it is not the same——
This is about the definition of a material interest. We will go on to look at the definition of performance of functions when we discuss sections 14 to 17. If there is any inadequacy in that definition whereby, for example, a chief executive could instruct somebody else to act on their behalf, we will deal with it at that stage.
With the greatest of respect, Chairman, this is most unsatisfactory.
We are dealing with something different here, which is material interest.
We are trying to look around corners as to the implications of what we are now agreeing. We are now agreeing that the definition of a material interest is going to be extended to people who were to be treated separately under section 14. They were to be treated separately in two respects — first, in the way contemplated by the amendment and second, in the sense that it had to be their personal performance which was at stake. I want to know why the original proposal in the Bill is now being abandoned and a material interest is being standardised for everybody.
A piece of legislation is not always drafted in the tidiest way. This is actually a tidying up of definitions which are restated at different points throughout the Bill. The point about section 14 (3), which we are not proposing to take out, is that events happen in Departments in the name of a Minister. For example, the Minister is deemed to be the person who orders the pencil parers because of the doctrine of corporation sole. We are saying that if some junior official orders pencil parers which nobody else knows about from somebody who is connected to somebody else, the Minister will not necessarily be held personally responsible if it has been a complete arm's length transaction.
We are trying to exempt issues which are deemed under the doctrine of corporation sole to be the Minister's responsibility. However, we are capturing issues where a Minister tries to wriggle out of a situation by asking one of his staff to do something rather than do it himself. That is what we are trying to do in section 14 (3).
What about departmental secretaries?
If it is a tidying up measure, why not tidy it up fully and bring section 14 (3) into this section as part of the definition? Is the Minister saying that section 14 (3) is not a description of material interest?
No, section 14 (3) is not a description of material interest.
It has to be. It is recognising how somebody could be in breach of ethics by getting a member of their staff to make a proposal for them so that nobody will guess that it is from them.
Section 14 (3) defines performance of functions, it is not about material interest.
Could the Minister indicate why this restriction on vicarious liability does not apply to other office holders?
Does it apply to the Secretary of the Department? Can he or she not tell the other officials to look after something in the same way that an unscrupulous Minister might? Does that apply to people other than Ministers?
I need to check up on that but if there is any doubt about it we will address that issue.
That seems to me to be the central issue.
This is about a definition of material interest and section 14 (3) is about the definition of performance of functions, which is not what we are discussing at the moment. We are only dealing with how it applies in section 14 (2) which has nothing to do with section 14 (3).
The Minister is consolidating the definition of material interest but not vicarious liability. We want to know why.
I will be happy to look at the issue of vicarious liability when we look at the different people concerned. It is open under the terms of the Bill to designate all sorts of people.
We have our differences with Ministers, as the Minister would know, but not to the extent that we would wish them to be dealt with in different way from some of these other people. We do not see why they should be treated any differently.
In the case of material interest, I agree with the Deputy that what we are doing here——
That is great.
——is exactly aligning the definition of material interest for Ministers with the definition of material interest for other people. That is all we are asking to do in this section.
Will the Minister look into that and let us know?
We will look into the issue of vicarious liability.
Amendment agreed to.
I move amendment No. 11:
In page 10, subsection (3) (a), line 1, after "her" to insert "office".
This is a minor technical amendment which follows on from amendment No. 10, so as to capture office holders in the general definition.
Amendment agreed to.
Amendments Nos. 12, 31, 48, 51 and 56 are related and may be taken together by agreement. Is that agreed? Agreed.
I would prefer to deal with the first one. I would like to hear an explanation of what it is all about before we say they are all related.
I move amendment No. 12:
In page 10, subsection (3) (b), line 4, to delete "in the course of, or as a result of," and substitute "in relation to or in the course or as a result of".
These are a series of technical amendments to capture both situations, where a material benefit is conferred by non-performance of a function and where it is conferred by performance of a function. The performance of a function is already covered in the original text of the Bill; in the normal course of events, conferring a positive benefit would entail awarding a contract. An example of refraining from acting would be non-pursuance of a person for a tax liability.
We are achieving this end by adding the words "in relation to" to "in the course of or as a result of". The same phrase is being added wherever this definition occurs in the Bill. This will cover acts of omission which would confer a material benefit on someone.
Amendment agreed to.
Question proposed: "That section 2, as amended, stand part of the Bill."
I wish to know the Minister's view about some matters related to section 2. What is her stance on the phrase "actual knowledge"? My concern is similar to that of Deputy McDowell when he raised serious constitutional questions; we do not want to spend the summer poring over this Bill only to find its raison d’�tre has been undermined.
We have built an elaborate structure to resolve conflicts of interest and we have just agreed a subtle amendment; the significance of the words "in relation to" did not immediately strike me. Having said all that, unless one can establish and prove actual knowledge, this structure is not worth a pinch of salt. I do not know how one can prove such knowledge in areas of potential conflict of interest or involvement of an office holder in matters of material interest to him or her.
The phrase provides an escape hatch in that, based on what we know about the practice of politics, there is almost no circumstance in which an office holder cannot say that he has no knowledge of a particular matter. A recent example concerns the Taoiseach. He is the major shareholder in his company and I am sure he told the truth when saying he had no knowledge of the problems which arose. If one can live in the same domestic dwelling as the other shareholders in a family business, holding 41 per cent of the shares in the company, and can claim no actual knowledge of a matter——
My question would have been different from that.
——what is the point of this legislation where constructive, implied or imputed knowledge is expressly ruled out? Perhaps some form of words to the effect that knowledge can reasonably be believed is a necessary safeguard. I intended to put down an amendment on this matter and I expect we will return to it on Report Stage but I would like to hear the Minister's view. We are building an elaborate edifice but if there is an escape hatch by pleading no actual knowledge, what is the point of the Bill?
I note the word "act" includes an omission or a failure to act. I ask the Minister to indicate where in the statute that will arise. I did not notice any such instance on a cursory glance through the Bill and this worries me. That is not a big point.
We are dealing with actual knowledge, which has a specific meaning in law, so we have to be extremely careful defining it. The Bill distinguishes actual, direct and personal knowledge from constructive, implied or imputed knowledge. This issue goes to the heart of the Bill because if one does not have actual knowledge of a conflict of interest, the Bill does not affect one; one can deny actual knowledge in court and distinguish it from constructive, implied or imputed knowledge.
Suppose the Minister and I were in Cabinet together and she read a newspaper article suggesting I had an interest in land in south-east or south Dublin.
Triple jobbing?
Yes, indeed. The Minister might read the article and wonder whether it was true but that is not actual knowledge that it is true. Therefore something notorious which was published about me is not something about which a person has actual knowledge unless one personally knows it to be true. It may be reasonable to believe the fact, and it might be something every reasonable person suspects, but it is not within one's actual knowledge unless one personally and directly knows it to be so. One cannot rely on someone else supplying the information.
If the Minister as my Cabinet colleague proposes to rezone land, and has read in a newspaper that my family owns the land in question, if she has no direct knowledge, this definition can allow the Minister or myself to avoid this commission because she has no knowledge that this is my land or that I have an interest in it.
This is relevant because when looking at these definitions we must examine the sections into which they are put. For instance, under amendment No. 33 which proposes a new section 14, nobody who does not have actual knowledge of the land interests is put on notice by any fact he or she may have read or which is common knowledge to the dogs in the street.
When imputed knowledge is excluded from the Bill, reality is excluded also. The Minister should not deny it because lawyers will have to decide whether a person committed an offence under this Bill, not people who say they know nothing about law. If one cannot establish whether a person knew, within the meaning of that definition, that someone had a conflicting interest, one will not sustain any charge under this arrangement. This was published in the newspapers months before the Minister made that decision and Deputy De Rossa questioned the Minister in the Dáil. I wondered whether he was right or wrong, but I knew nothing about it. This is the type of stuff which will be put up as flannel to defeat claims of impropriety under this Bill.
No charge will stick under this Bill — this has been carefully written — unless someone finds a diary entry, a written acknowledgement of the state of knowledge or a letter written to the Minister outlining the state of affairs. A letter is not direct knowledge unless one knows the person involved is in a position to inform the Minister authoritatively on the subject. A complaint about Deputy Currie's interest in land, for example, is not enough to give the Minister "actual knowledge". In law one is put on notice of things and, in certain circumstances, one cannot ignore the obvious signs, which are publicly known about somebody, and say nobody told me about it. One cannot say those things if the definition in amendment No. 33 applies.
It will not be good enough to show a Minister an article in the Sunday Tribuneor whatever stating that the brother of the Minister in question had an interest, or was reputed to have had an interest, in land. None of these things places an obligation on someone to inquire whether there is a conflict of interest. The only circumstance where a charge will stick under this statute, if this definition of “actual knowledge” goes into operation, is if one has a written acknowledgement by the person that they knew something or if a person has incontrovertible evidence that they must have known it from their own “direct knowledge”.
The word "direct" is frightening because it will allow people who will be embarrassed enough when the time comes to say they heard something from someone they usually trust, but that they were not sure whether they were telling the truth. Although they may have suspected or had grounds to believe something, it does not apply.
Deputy Rabbitte was right to say — although it may be correct to leave that definition of "actual knowledge because it means what it says— that in amendment No. 33 "actual knowledge" is the yardstick for a conflict of interest. It is completely unworkable. It is a liars and cheats charter because people will say I heard or read something or that it was said in my presence, but I did not know it myself. That is what will happen and there is no point codding ourselves. The harder the person's neck, the greater the ease with which they will walk through the provisions of this Bill. I would like the Minister to defend the term "actual knowledge", a direct personal type of knowledge, as the yardstick.
Deputy McDowell described this as a liars and cheats charter to be interpreted by lawyers. What a dreadful prospect. The Minister must consider this carefully and come back to this committee as soon as possible to tell us whether Deputy McDowell's and Deputy Rabbitte's interpretation is correct. As a non lawyer with slight experience of these matters, I fear there is some relevance in what Deputy McDowell and Deputy Rabbitte have said. This is an important matter and I have two simple questions. Does the term "special advisers" include programme managers?
It includes programme managers who have been personally selected by the Minister outside the normal Civil Service procedure.
Does it include programme managers who are seconded to the job as civil servants?
They will be covered by the designated positions as civil servants. It is envisaged that everybody of principal officer rank or above will be designated. Programme managers are normally at principal officer level.
The term "special advisers" covers those who have been brought in from outside?
The definition includes those personally selected by the office holder concerned.
A programme manager who is a civil servant could be specially selected by a Minister.
The definition "special adviser" refers to non-civil servants brought in from outside.
The Bill provides that gifts worth over £500 to office holders, their spouses or children are to become, by virtue of that office, the property of the State. I assume the £500 will be indexed.
That has been provided for. We have already dealt with the power of the Minister for Finance to make regulations to index the amounts in the Bill.
As regards "actual knowledge", I am worried that it might affect section 22 which gives the commission the power to decide not to carry out an investigation if it believes an adequate investigation cannot or will not be carried out. The definition "actual knowledge" could mean that the commission may decide that a complaint is not based on "actual knowledge". The two Deputies who spoke about this made it clear that is the way most people will make a complaint; people will say they heard something from someone they trust, although they may not have been present when the person bought the shares, property, etc.
This definition could mean that an investigation may never be ordered by the commission if it does not have "actual knowledge". Section 22 gives the commission a lot of leeway whether to investigate a complaint. It may make a decision as to whether it is spurious or otherwise based on line 40 of section 22, which states that the commission shall decide not to carry out an investigation if it is satisfied that an "adequate investigation cannot or will not be carried out by or on behalf of that Minister".
A decision as to whether an investigation could be adequately carried out could be based on the premise that the basis of the complaint is not based on "actual information". That section could mean no investigation would be carried out if it is based on how the complaint comes about. I am afraid this section might not be implemented if this definition remains as it is.
I will reply to the points in alphabetical order. The word "Act" appears in sections 12 and 24 and refers to behaviour relating to compliance with the Act. As regards "actual knowledge", a lot of thought went into devising the current formula to ensure the requirement would not only be as effective as possible, but reasonable and secure from constitutional challenge. It is on constitutional advice that we have this definition.
The definition of "actual knowledge" applies where someone has "actual knowledge" that a connected person has a material interest in something. It does not apply to my knowledge of my affairs, which are assumed to be complete. It applies to my knowledge of my business partner's affairs and of my children's affairs. In drawing up the Bill we had to be careful——
What does one do in the actual situation?
If I may finish I may be able to elucidate the point. It does not apply to the situation raised by Deputy Owen. The question as to whether somebody has actual knowledge of a complaint is not the context in which it is used in the Bill. The issue is whether I have actual knowledge of my daughter's business interests.
We had to be very careful when drafting the Bill and received legal advice on these points. We had to strike a reasonable balance between an individual's right to privacy and the need for effective legislation. We are talking about people who are connected to people in public life or holding public positions. The obligation on a person who has to make a declaration under the Bill is in respect of matters relating to third parties of which they have actual knowledge.
The Bill does not directly oblige a third party to inform the office holder. If one had an estranged son or daughter who refused to give information about their business dealings, one would not have actual knowledge of those business dealings. The Bill does not compel that estranged son or daughter to give that information. The legal obligation is on the person obliged to make a declaration under the Bill rather than on their relations. These are the issues which governed the striking of a balance when setting the test of actual knowledge. We have done it carefully and on the best legal and constitutional advice.
I share Deputy McDowell's strong concern that the Bill should withstand any possible constitutional challenge. The provisions in the Bill are on the basis of legal advice. The issue is about people making a statement of those interests of which they have actual knowledge and which could materially influence them in the performance of their functions by reason of the fact that such performance could so affect those interests as to confer or withhold a substantial benefit.
Those required to make statements will be conscious of the need for the fullest possible disclosure and the fact that non-disclosure in any case would have to be defended. The commission or the committee will have power to call people and send for papers and records if they believe they are being spun a story or, to use Deputy McDowell's phrase, if they believe they are dealing with liars and cheats. The committee or the commission as appropriate will have the power to call and question witnesses in order to draw their own conclusions as to whether somebody had actual knowledge.
The provisions were carefully chosen following legal advice and that is the reason for that particular definition. It is not intended in any way to be a liar's charter but it is intended to give a definition which respects the legitimate privacy of third parties and is constitutionally sound.
I ask the Minister to tell us a little more about the legal advice. The legal advice one gives is conditioned by the purpose for which it is sought. If the purpose here is to have water tight legislation, the advice given will achieve the contrary.
If one has a sufficiently hard neck in the practice of politics, I can see no conceivable situation where somebody cannot deny actual knowledge that a connected person or fellow Minister had a material interest in a decision. There are no such circumstances because if one is so minded, even in a witness box, one could say one did not have actual knowledge or vaguely remembered reading something in the newspaper but dismissed it. That is the kind of practice at which we have arrived.
I am fascinated by the ability of the commission to send for a person's papers and records. One may be able to call the relevant Minister before the commission but when questioning him about discussions at Cabinet meetings about the decision, he will plead Cabinet confidentiality. I know the Minister would not want this to be the case but I suggest that this is the effect of the advice she received.
By way of parliamentary question, I asked the Taoiseach whether he brought to the attention of the Ministers making the decisions in the passport affair that he and his family had a material interest in the decision. He refused to answer the question but went on to say that everybody knew of his interests. How is such a situation to be handled? The Minister for the Environment, Deputy Smith, said he did not know the purpose for which he introduced the Masri family and did not know the indentity of the beneficiary, and I am prepared to take his word for it.
The Deputy is on his own in that.
We are spending a great deal of time constructing an edifice to deal with these situations and there is a trapdoor through which an elephant could escape. I am deadly serious about this. I have no difficulty about Deputy Hilliard, myself and other backbenchers being required to declare our interests but that is not the main purpose of this legislation. The main purpose of this legislation is to deal with potential conflicts of interest.
Backbenchers are to be hauled before the court to answer for their interests. In the rare case that there might be transgression by office holders who dispense influence, they can escape out the backdoor by saying they had no actual knowledge. I have very grave doubts about the merit of what we have embarked upon.
I echo Deputy Rabbitte on this point and amplify it. In the criminal law there used to be an offence of receiving stolen property under section 33 of the Larceny Act, 1916. The offence was committed by somebody who received property knowing it to have been stolen. It took the English until 1968, and typically took us another quarter of a century, to realise that this legislation was utterly unworkable.
An offence had to created where somebody dishonestly receives property while having reasonable grounds to believe it was stolen. Knowledge cannot be established in law unless the person confesses to the police, buries the property in their back garden or there is some other inescapable fact. Those are about the only circumstances in which one can prove knowledge.
The Minister gave us an example about an estranged spouse and children and also mentioned the necessity for constitutional probity to which I will return presently. The example suggested by the Minister is, with respect, the most unlikely ever to trouble a commission. A commission is going to be troubled by the phraseology in amendment No. 33 which provides that an office holder who proposes to perform a function of his or her office and has actual knowledge that he or she or a connected person or other office holder . . . has a material interest in the matter to which the function relates shall, before or, if that is not reasonably practicable, as soon as may be after such performance afterwards inform the Taoiseach and the commission of the interest. Does the Minister accept that this is the most obvious use of the phrase "actual knowledge"?
I do, but I do not think there is a problem because in that circumstance the interests of the other Ministers will be a matter of public record on the register.
That is the point I was about to mention. Imputed knowledge of a public register is one thing; I am imputed to have knowledge of many things if I am dealing with a company and if it registers something in the Companies Office it is too bad for me if I do not take it into account. I am imputed to have knowledge of what is in the Registry of Deeds or the Land Registry if I buy a house. However, the Minister has specifically excluded imputed knowledge from the definition. Effectively she is saying that what one Minister registers is to be imputed as knowledge to another person. That would be fine if the Minister said that, but she does not. She specifically says the opposite; she says that implied or imputed knowledge is excluded from actual knowledge.
Therefore, unless Mr. Padraig Flynn or the Minister, Deputy Smith — as per Deputy Rabbitte's example, whatever the rights and wrongs of it — had gone to the Companies Office and checked the register and knew that the Taoiseach had a 41 per cent shareholding in a company, nobody is to impute that knowledge to them; nobody is to say that the dogs in the street know it. I did not know what his shareholding was until this scandal blew up; I had to check it. What I directly know is from the certified copies of the documents in Company House. What I suspected was that he had a substantial interest in that firm — I had read it in the newspapers — but my direct, personal and non-imputed knowledge would not qualify under this provision.
Likewise the example I gave. If the Minister and I were together in Cabinet and she knew from social chat that I or my family had a significant interest in something, unless it is registered and she has consulted the register she would not have actual knowledge of it. This Bill is about avoiding corruption and in order to pin responsibility on somebody under this Bill a person has to prove that they had every good reason to suspect that something was afoot or that one of their Cabinet colleagues had just bought interest in land, and it was not registerable, or had bought an option on a piece of land that was to be bought by the Government or the IDA. In such circumstances the test laid down here of actual knowledge and proposed to be put into section 14 is impossible to satisfy.
The Minister said that this is being done on legal advice to make it constitutional. There is no earthly constitutional reason, if one is imposing an obligation on somebody to report a possible conflict of interests, one cannot say that a Minister who has reasonable grounds to suspect that a decision they are about to make may benefit another Minister, is under a duty to notify the commission. There is no earthly reason under the Constitution that should be so. That applies to estranged children and all the domestic situations the Minister mentioned.
If I believe or have reasonable grounds to suspect that I am about to enrich my so-called estranged wife or her son, there is no reason I should not be obliged to reveal that to a commission. One would never have actual knowledge of one's estranged wife's affairs unless she came to visit and made embarrassing revelations every time one was about to make a decision which helped her.
I would not mind if the word "direct" was excluded. If the word "direct" was omitted I would accept that it would have to be personal as opposed to corporate knowledge and it would have to be actual as opposed to implied by some rule of law. "Direct" means that one has to have the means of knowledge oneself and have, therefore, inspected the records and know the shareholdings. Direct is the opposite to indirect; if I had indirect knowledge which somebody whom I normally trust has given in good faith, that, for example, Deputy Currie has an interest in some land and I tell the Minister the day before she makes a decision that I believe Deputy Currie has such an interest——
Hearsay.
Yes, hearsay; that is not direct knowledge and the Minister might say that she does not care and will go ahead with her decision. If, in those circumstances, it is later proven that I had told the Minister not to go ahead because of Deputy Currie's interest, the Minister would say to the commission precisely what she has said now — hearsay; I did not believe it. How can that be a reasonable test of reasonable behaviour? The Minister condemns herself out of her own mouth.
If someone goes to the Minister the day before she makes a decision and says "Do not do it. It is corrupt; it will enrich a fellow Minister" and the Minister replies that it is hearsay, what kind of test is that to put in place? It does not bear rational scrutiny. Only those who are soft headed will ever be found out by this. The hard necks — the people with whom we are dealing — will say to the commission, "Yes, I remember Deputy McDowell, who has just given evidence before me, coming to me and warning me seriously that this was corrupt. I said it was hearsay, laughed and walked away." What kind of nonsense are we legislating for now?
I repeat that we were careful in devising this Bill to ensure that the terms are fully in accordance with constitutional principles. We have to ensure that any tests, particularly in relation to third parties, are reasonable and in conformity with constitutional principles.
The intention of the legislation is clear — we intend to provide safeguards against corrupt behaviour. The definitions are intended to push the boat out as far as we can within constitutional propriety. If, within constitutional restraints, there is any way we can improve on those definitions to achieve the aims of the Bill — which are shared by all sides — I will look at it.
With regard to section 14 and what is a test of actual knowledge, it would be reasonable and prudent for any Minister to inspect the register and for their civil servants to present them with the details of a company that is registered as one in which any fellow office holder has an interest. The requirements under section 14 proposed in amendment No. 33, will require stringent standards of prudent behaviour by any office holder in relation to any such cross-check. If there is any way this can be improved while respecting the constitutional rights of third parties, such as an estranged son or daughter and their right to silence, we will do so.
In relation to hearsay, it is important to note that if a tabloid journalist or paper was to write something untrue about Deputy Currie, for example, that should not be taken as true. We need to exercise caution and it was in that context that I made the remark about hearsay.
I am not trying to embarrass the Minister with the remark but it underlined the problem, which is that the dogs in the street could know something about somebody and, therefore, any Minister in the Cabinet could have reasonable grounds to suspect it. If the Minister puts this test of actual knowledge in place, it is not satisfied unless the person has personal direct knowledge of the truth of the proposition in question. There is nothing in the Constitution which would excuse people from declaring an interest if they had reasonable grounds to suspect that the interest existed. It is a matter for the commission to decide as to the reasonable grounds for suspicion. However, it cannot look behind this definition.
Reasonable grounds to suspect could be that the papers had been writing about it for weeks. Reasonable grounds could be where a Minister or a child of a Minister acquires an option on land and a reputable person goes to the Minister in question and says he or she should be careful that they are about to confer a major interest on this person. In those circumstances, one has reasonable grounds to suspect because a credible person has said something is so and one has reasonable grounds to suspect it is true.
If the word "direct" is left in and actual knowledge means direct, personal knowledge, which is not imputed or does not come under the hearsay ruling, one is creating a level of awareness and a legal onus of proof on anybody who wants to punish somebody for non-compliance with this Act or impose any sanction with which it is impossible to comply.
From my experience of the criminal law, I know that if one creates an actual knowledge test, in 90 per cent of cases where there is a grave suspicion, people must say it is not proved, forget it. However, if one introduces a reasonable ground, it casts an onus on that person to produce some explanation as to why they ignored the credible information which was given to them.
I ask the Minister to agree, not simply to review it in the light of the Office of the Attorney General's advice to the Government. That is extremely conservative advice. The purpose of the Bill is to create a workable sanction against corruption. If Al Capone's activities had to be proved on the basis of actual knowledge and if he could rely on the Office of the Attorney General to say that was the only standard that could be applied——
If he had longevity, he would still be around.
That is true. It is curious that in the prevention of corruption legislation, which the Victorians introduced, there is a presumption of corruption in that criminal offence. It is amazing that when one comes to actual knowledge, the presumption is the other way. Unless the investigating body can actually demonstrate that the person's denial of actual knowledge is true, it must exonerate him. That is a crazy situation.
As I said, I am happy to have another look at it to see if there is any way in which this definition could be improved, consistent with the advice on the constitutional right to privacy of third parties.
I do not doubt the Minister's goodwill in that regard. However, she said such things on Second Stage when, coincidentally, the passport affair blew up and arguments were made in the House. It was shown that the Bill could not encompass what transpired in the passport affair. The Minister said that she would strengthen the Bill and furthermore that she would be open to amendments from the Opposition. She has not taken on board any amendments from the Opposition so far.
This is the single most important issue raised in the Bill. It is an escape hatch which undermines the Bill's integrity. The Minister must know that her Government today announced the fortunate people who will benefit from the areas which have been designated for tax advantage under the urban renewal legislation. The package was announced today and a great many people will be in better standing with their banks as a result. I cannot believe the Minister was so preoccupied with framing this legislation that she is unaware of the interminable delegations which have arrived at the Custom House and Merrion Street over the past six months.
The fact remains that it would be impossible under this legislation to impute any such thing as direct personal knowledge to the Minister for the Environment in any particular area of the country that he selected to benefit from the special tax advantages conferred by the Finance Act.
Unless one had a photograph of him in the Registry of Deeds.
Even they might think it would be hard to prove that it would stand up. He could say he was inspecting the new technology improvements that have been installed in the Companies Office, although I am sure he would not say that. However, it is a good example. Millionaires have been made as a result of the Government's decisions today. Good luck to them and I hope it means the creation of much wealth in the economy and many jobs.
The merits of designating selected areas of the country and not others is an argument for another place. Millionaires have been made over night. It will take some journalists, who have knowledge in this area, to find out if any of them are related to any Minister. If they are, that in itself is not an offence. Where a complaint is lodged that an offence may have been committed under this legislation, it would not be possible for the commission or any court of law to establish that the Minister for the Environment of the day had any direct personal knowledge that such a benefit was being conferred on a connected person or the business of a fellow member of the Cabinet.
Even if he could prove that somebody had written to him, on this test, that does not stand up.
Deputy Rabbitte will understand that I am anxious to have as strong, as tough and as effective legislation that is achievable in this area. He and I soldiered for many years together on Dublin County Council. He will understand my views on the abuse of power, rezoning, etc.
I never doubted the Minister's views. I accept that.
The Deputy can be assured that if there is any way this definition can be improved, consistent with the constitutional requirements, it will be done on Report Stage.
In relation to the definition of a benefit, what is meant by the term "dignity"?
Is it a peace commissioner?
Section 2 (1) (a) states "a right, privilege, office or dignity". What is a "dignity"?
I understand the term "dignity" is taken from the corruption Acts and refers to such matters as a perk. I would need to do more legal research before I could come back with a more comprehensive answer. I understand it is taken from the corruption Acts and the term "dignity" has been used previously.
I ask the Minister to explain "commercial price". Has she any notes in that regard? I wish to understand this concept.
I do not have detailed notes but in broad terms, this definition is intended to cover a situation where, if something is on special offer one applies the sale price. If one is talking about a subsidised product or service, it is a gap between the price one is actually charged and the normal commercial price. The relatively convoluted phraseology is intended to convey this situation. The definition talks about "the lowest price or consideration charged by him or her for the supply or lending in the normal course of business". While complicated, it is intended to cover the normal commercial price somebody would pay for a product or service. It also includes provision for special offers, etc.
Would a dealer in goods, which is covered in section 2 (a), giving something to somebody at wholesale or below the commercial price be covered under the provision?
It would be covered since that would not be the normal way they would deal with other members of the public. Some people offer factory sales enabling any member of the public to avail of products at wholesale prices, but if somebody is offered a special deal that is not given to the public, it would be covered under this provision.
I want to ask about the definition of "holding company". The Bill says it is related to the meaning given in the Companies Act, 1963. The Minister may be aware that the term "holding company" is out of date in many respects. The term "subsidiary" is also connected with that definition in that it also has the meaning assigned to it in that Act. There are so many artificial constructs, nowadays that the term "holding company" can be meaningless. A major company can organise its affairs in such a fashion — it happened recently in the context of the new proposed Competition Bill — that it can evade the provisions of the Bill — for example, thresholds in terms of assets and turnover.
This is the best definition we have. I accept the points made by Deputy Rabbitte and if we can get a better definition that takes on board changes in company arrangements, we will come back to it.
The Bill refers to "election expenses in relation to a member, means expenses incurred for the purpose of promoting, directly and during an election.....". What if a trade union, an employers organisation or an individual made a premises available to a party or candidate during an election? Renting a good premises during an election might cost a considerable amount. Would this count as an incurred election expense?
In regard to gifts, some Members are sponsored by trade unions and are given trade union premises for holding clinics and other facilities. Would these be considered gifts? I am not criticising these Members. Other organisations, such as employers bodies, pressure groups or individuals, may offer premises as a form of enticement, inducement or a trade off for the future. How will these factors be covered by the legislation and will they be considered?
First, the definition of "election expenses" arises if an office holder is given a gift which exceeds £500 in value. It is intended to cover the area of election donations in the Electoral Bill, which is virtually ready. We have provided in our legislation a facility to realign the definition of regulations with whatever emerges from that. If a Member gets a gift of £600 for election expenses, that would normally be declared as a gift under the Second Schedule of the Act. If an office holder got a £600 donation towards an election, that would be forfeit and become the property of the State.
It is unfortunate for the Exchequer if it turns on its head.
That is the reason for this exemption. The treatment of declaration of election donations, ceilings on expenditure and so on will be dealt with in the forthcoming Electoral Bill. Members will have a good idea of the outline of its provisions from what is in the Programme for a Partnership Government.
If someone gave a Member a gift of a premises in one's constituency for meetings or clinics and the rental of those premises exceeded £500, would it have to be declared?
It would have to be disclosed as a gift under the Second Schedule of the Bill.
There are many donations that would have to be regularly declared.
If a Member has a benefactor who gives him £600 per year to keep him politically alive between elections, it would be considered as a gift and would have to be declared.
That includes property, facilities or anything of that nature which could be reckoned as being in excess of £500?
Gifts arise in two ways under the Bill. First, if somebody gives a Member a present, it has to be declared under the declaration of gifts. The disclosure requirements for those on semi-State boards are modelled on the Second Schedule of the Bill.
If the figure is less than £2,000, could one not get away from it by saying it was income from a second source?
One can seek guidance as to whether it is income, such as a political consultancy where somebody is giving a Member a retainer of £600 or whether one got discreet gifts of £600 at different times and they become declarable as gifts under the Second Schedule. That provision applies to all Members and office holders. Similar provisions will apply to the kind of declarations required from members of semi-State boards, senior public servants and senior executives of State companies. If somebody gave me a jewelled dagger which is worth——
Which I am sure the Minister would use in the present circumstances.
——more than £500, it would become the property of the State.
I wonder who the victim would be this evening?
I do not want to refer to the Second Schedule now since we may be debating it later.
Does Deputy McDowell mean a register of interests?
I do not want to artificially warp the sequence of events by referring to that at this stage. When will we see this Bill? We were promised both Bills would be debated in tandem. We are now getting into the substance of this Bill and while I am considering it, I want to know what is other side of the equation.
If this Bill is discuss in tandem with the other, it will be because of our efforts.
To be fair, it was always intended that the schedules of the two Bills would coincide and that will happen because the Report Stage of this will not be taken until——
I would prefer if they were taken here on Committee Stage where we can discuss matters rather than listen to speeches.
I cannot give the Deputy a date for the publication of the electoral Bill. I gather the work on it has been substantially completed. The Minister, Deputy Smith, has responsibility for that Bill so I cannot give the Deputy a definite date for its publication.
Will it be ready before September?
I understand it should be.
The Taoiseach gave us very specific commitments.
This Bill was to be discussed in tandem with the other Bill.
I did not believe when I set out on this process how long it takes to draft legislation, how many complications are encountered. The electoral Bill encountered a few legal problems and constitutional issues which have to be addressed, as did this Bill. I gather that work on it is well advanced. I cannot give a date for its publication since it is not in my area of responsibility.
In relation to the words "relative" and "spouse" on page 9 of the Bill, the term "relative" includes a child of the person or of the spouse of that person. If my stepson continues to live with me, even though his mother and I separate, am I right in saying that having regard to the definition of "spouse" in lines 11 and 12, he is no longer regarded as a relative?
The Deputy would probably be right in that.
That is crazy. If a woman marries a man and that woman already has children and for some reason she moves out or separates, by virtue of the definition of "spouse", which excludes somebody who is living separately, if she died he would still be the man's child, but if she moves out he ceases to be a relative. If she dies, he is the child of the spouse or the person who used to be the spouse, but on the definition as it is there, "spouse" specifically excludes a person who is living separately and apart from the person involved.
I apologise to the Deputy. I misled him. I understand from my advisers here with whom I have been discussing just such difficult relationships, that they are covered.
How are they covered? Please bring me through the two situations. I do not want to hear that they are covered just like that, I want to hear how.
If there is a question of doubt, no more than on any question of doubt which any Member wishes to clarify, the interpretation of the words in question will come from the select committee or the commission as appropriate.
Hold on a second. This is about the fourth time the Minister has trotted that out. It is wrong. The interpretation of the law is decided by courts. If it comes down to an issue whether a Minister did or did not owe an obligation to declare an interest of a person called a child or a relative, a court will decide what the Act meant. The issue is that a relative includes a child of the person or of the spouse. The definition of "spouse" excludes a spouse who is living separately and apart from the person. Therefore, if the stepmother moves out, which could happen, especially in a post-divorce situation, the child will cease to be a relative even if he continues to live with and to maintain the same relationship with his erstwhile stepfather.
My advice from my officials — I cannot give the Deputy any more detail at this stage — is that this situation is covered. We will come back to it if there is any problem with it. I give that undertaking.
This will all be decided in court where the person who presides is immune to any of these restrictions or regulations.
He will not listen to this debate to help him decide either.
It should be clear that where there is an issue, where somebody seeks guidance from the commission and acts in accordance with the commission's ruling, they shall be deemed to be acting in good faith. That does provide a commonsense overlay for situations which may be unusual. That provides a safeguard in these circumstances.
What constitutes a "connected person"? I wish to raise the specific point of subsection (3) first, where a person is connected with any person with whom he or she is in partnership. There is no definition of partnership. What does "partnership" mean in this context? Is it a business partnership, a personal partnership or an investment partnership?
The definition of "connected person" is largely based on that used in the Corporation Tax Act, 1976. It is also partly formed by the definitions used in the Building Societies Act, 1989 and the Companies Act, 1990. In that sense, I understand we are talking about a business partnership.
Will the Minister explain subsection( 2) (a) (ii)? I find it very difficult to follow:
a person, in his or her capacity as a trustee of a trust, is connected with an individual who or any of whose children or as respects whom any body corporate which he or she controls is a beneficiary of the trust,
A person in a trustee beneficiary relationship is deemed to be a connected person. If I was the trustee of a trust of which your children were beneficiaries, I understand that your children are connected people of me.
If you are trustee of a trust?
If I am trustee of a trust of which they are the beneficiaries.
In relation to "connected person", would the Minister look at amendment No. 33? It uses the term "he or she or a connected person or another office holder". Does that apply to a person who is connected to another office holder?
It only applies to a person connected to another office holder where, under section 14(2), an approach has been made by one office holder on behalf of their connected persons to a second office holder. We are not proposing to cover relations to the Nth degree.
I am not asking to the Nth degree, I am asking to the very first degree. As I read it, if no approach is made under subsection (2), the Minister is proposing there to allow me to confer on another Minister's son, for example, a benefit without any obligation to report it to anybody, if he does not make an approach to me.
That is right.
Is the Minister serious?
Deputy Rabbitte made the point recently in discussion on the Order of Business that the relatives of Ministers should not be advantaged or disadvantaged in their dealings with another Department by virtue of the fact that they are relatives of the first office holder. The purpose of section 14(1) is to deal with situations such as the following: if I perform a function of my office, and work commences with a minimum of 34 office holders, I must be aware not that only have I a personal interest carrying out the function of my office but I must also check the written declarations of the other 33 office holders. The degree of public concern occasioned by recent events warrants strengthening the Bill in this way and I am happy to do so.
However, if I am undertaking something which benefits the brother of the Minister for Transport, Energy and Communications, it is not required that I be aware, nor would I be required to check or be reasonably expected to know, that all the relatives of the other 33 office holders have any interest in a company to which I may award a contract. However, if the Minster for Transport, Energy and Communications makes an approach to me on behalf of his brother there is an obligation to put the relevant provision in place.
The relatives of those in public office, in their dealings with other Departments should not be advantaged or disadvantaged in their dealings. They should be treated in the same manner as any other person. This is therefore a different amendment to that put down by Deputy McDowell and these are the reasons it is important that it be accepted.
I appreciate that, but I am becoming more attracted to my amendment rather than the Minister's. It now transpires that a Minister can decide to confer a contract on the wife and son of another Minister who lives in the same house as him, but this will never be heard of and the commission can never inquire into it.
There are two issues here, one of principle and the other of practicality. The issue of principle is that if the brother, sister, father or adult child of an office holder is legitimately running a business, they should be in a position to tender for Government business in any other Department, and to carry on their business normally.
Nobody is suggesting that people should be excluded from tendering. All that is required is that if there is an awareness that the wife or son of other Ministers are being awarded a contract, the commission should be notified of the intention to do this. Nobody is damnified by this proposed course of action. The contract does not have to be terminated on the basis that the commission has been notified. It is not a prohibition.
That is my point. In respect of the quote which the Minister attributed to me on the Order of Business, nobody is seeking to disbar people from tendering. In this respect, the only circumstances which the Minister outlines is if the Minster performing the function made an approach to her——
Directly or indirectly.
——directly or indirectly.
For example, if the spouse or the child of the other Minister directly approached the Minister and requested the contract.
What does "indirectly" mean in the context of the country in which we live where any number of other persons could make the approach to the Minster other than Ministers themselves? There has been much experience of this kind of activity.
If I were to ask Deputy Currie to make representations on behalf of my brother to a third Minister, it would be treated as representations which I made——
How would that ever be known?
How could it possibly be proved that the Minister had made such a request to Deputy Currie or, for the sake of argument, if Minister Currie approaches Minister McDowell and requests him to make the decision to award the contract to the Minister's son, how could it ever be proved, unless Minister Currie fell out of favour and decided to spill the beans, which is the only way this kind of thing is learned about in Ireland.
This measure is intended to deal with the situation where the provision cannot be evaded by asserting that a direct approach was not made but that the secretary was asked to do so.
This is acceptable, but given the definition of connected person, and the way in which it will be used, the spouse and child of a Minister could establish a company, directly approach another Minister and request, for example. the cleaning contract for Dublin Airport. In those circumstances, no requirement to notify the commission exists that a Minister intends to do something like this.
The case of a spouse is——
I refer to the real cases.
The Minister should be aware that this is relevant to section 14.
Where the spouse is living with a partner, it can be assumed that a benefit conferred on the spouse will also be a benefit conferred on the Minister.
This assumption is not written into the Bill and no lawyer is going to believe it.
The longer the committee discusses the Bill, the more I fear that it is wasting its time. If incidents of this kind take place in the future, they will not happen in the way suggested by the Minister, where people will be caught. It will be undertaken in a devious way, in a way that is not alien to us. Those involved will go out of their way to cover their tracks and they will not be caught by these proposals.
I am in favour of a declaration of interests which this Bill seeks to create. However, I am concerned that, not among backbenchers and Opposition Members, but at the centre of the Governmental system, where such measures would be worth implementing, such incidents can happen and the Bill will not prevent them.
I draw the attention of the committee to the definition in section 2 (2) (b) which states:
In paragraph (a) "control", has the meaning assigned to it by section 157 of the Corporation Tax Act, 1976, and any cognate words shall be construed accordingly.
This definition may be improved upon on Report Stage, but it is designed to cover situations where somebody artificially transfers property into another person's name and where somebody effectively has control.
This refers more to the definition I raised earlier regarding a holding company and does not relate to the situation the committee is considering at present. The most typical example would be a member of the Cabinet who has a son or daughter in business and a decision is about to be made by one or other Minister in Cabinet, the effect of which would be to confer a significant benefit on the business of that son or daughter. Unless the father, who is a Member of the Cabinet, makes a direct approach to the Minister making the decision, there is nothing in the Bill which requires disclosure.
Let us take a practical example and one which will not ruffle any feathers of the Members of the Cabinet. Say the Minister for Transport, Energy and Communications has a valuable helicopter contract to award, and he is aware that the son of one of the other Members of the Cabinet runs a large helicopter company in Ireland——
Deputy, you are, by innuendo, suggesting that something happened in respect of certain members of a former Cabinet.
I am not. This is a prime and realistic example. Is the Minister suggesting that in such circumstances the provisions of the Bill do not become operative at any stage unless the first person, the father of the owner of the helicopter company, was foolish enough to make a direct broadside and request that the contract be awarded? Is that what this Bill actually means?
I referred also to practicalities. You happened to pick an example where there is public knowledge of the particular situation. Put yourself into the hypothetical situation of being a Minister about to carry on the functions of your office. When this Bill is enacted, any prudent Minister, before doing anything, will be presented or will acquaint themselves with a schedule of their interests, as well as those of connected persons and other office holders. I am just saying there are practicalities involved if, in addition to that and before anybody moves, they have to check whether any of Minister Dempsey's ten brothers has a business interest in the matter in question, or if any of my seven brothers and sisters or my three daughters has an interest.
They do not have to do any such thing under this legislation. After all, you are requiring Members of the House to declare if they get a gift of more than £500, and here we could have decisions made by a Cabinet Minister to confer a contract worth millions of pounds, yet there is no such requirement for disclosure. That is probably the way the Minister would discharge her duties if she was in the Cabinet but to be perfectly honest, you know less about Irish life than I if you think everybody would approach it in the way you say you would.
Keep Irish life out of it.
It is important to say that where there is any allegation of wrong-doing in relation to an office holder, a director of a semi-State body, a senior executive of a State company, a secretary of a Department or other senior designated public officials, it will be investigated by an independent commission which has power to call person, papers and records. The commission will present a report which will then go before the House whose Members will decide what to do with it. If the commission simply regards as incredible a statement which was made by an office holder, they will be in a position to report that statements were made which they find difficult to believe. The resultant publicity will be a safeguard. That is why I say that any prudent Minister will follow the procedures I have suggested. It would be unreasonable for any prudent Minister to be required to look into the family affairs of 33 other office holders, each multiplied by ten others.
Nobody is suggesting that.
There must be 25,000 businessmen in this country called Smith, 50,000 called Ahern and 10,000 called Dempsey. It simply does not hold water for the Minister to say it is reasonable that a Minister making the decision would have to trawl through the genealogy of Ministers' family trees, and that a normal prudent Minister would be expected to do that when confronted with tenderers who happen to have common Irish names. It would not happen in practice.
That is why we are not proposing to deal with it.
With the greatest respect, the Minister is ignoring the blindingly obvious and dealing only with exceptional cases. I am dealing with a case where a Minister knows well, or has reason to believe, that he is about to benefit the son, daughter or spouse of another Minister. The Minister knows it as a fact, directly or at any level of knowledge you want. The Minister is saying that in those circumstances such a person is not obliged to draw the attention of the commission to such a transaction. I am not asking him to run checks. I am not talking about imputed knowledge, artificial tests or other things he should do to cleanse his mind of any doubt. If he has reasonable grounds to believe that he is about to give £2 million benefit to the child or spouse of another Cabinet member, there is no practical reason a Minister in those circumstances should not inform the commission. Otherwise this Bill means very little. It means very little if you do not deal with real, tangible cases of which we know. For example, and without any malice, if, in the old passports affair, the Taoiseach did not have personal shareholding in C & D Foods, but his wife and children had all the remaining shares, you are saying that this would not trigger into effect, none at all.
It would not.
According to what you have said, any prudent Minister — to use your own phrase — would already be doing that. What is there in this legislation that will force such a Minister to do something that a prudent Minister should not be doing at the present time?
There are not many loopholes in this Bill. It seems to me that you have pored over it long and hard, but the few loopholes that are in it are big enough for an elephant to escape through.
With Hannibal on its back.
That is my honest view on it.
I spoke earlier about what a constitutional expert was telling us could happen on the constitutional end, and the liars and cheats charter as interpreted by lawyers. To use the phrase of a judge in another jurisdiction, "an appalling vista" is opening up; an appalling vista of all the time we have spent discussing this Bill, plus the time we are going to spend discussing it in the future, and the work which the Minister has personally put into it, going down the plughole.
I utterly reject the suggestion that this Bill is full of loopholes. This Bill has been very——
It is not. Nobody said that.
Nobody said that. We said there are two or three very obvious ones that you are not addressing.
This Bill has been very carefully drafted. Following Second Stage we gave further detailed consideration to points which had been made. I gave an undertaking that where points of substance were raised, I would look at them and come back on Report Stage. I am very anxious that we should have a Bill that is as strong and effective as possible and I believe we have drafted such a Bill. If it can be improved through the process of teasing out, I am open to that process. The point out of which we are making a meal at the moment has been dealt with. The issues of substance and importance are dealt with under the amendments we are proposing to section 14. Careful consideration was given to widening particular definitions. As I have said, there are good reasons the widening of obligations under the amended section 14, to include connected persons of Ministers, were not included. The first reason was that anybody carrying on business who happens to be a brother or sister of an office holder should not be in any way disadvantaged, directly or indirectly, in their dealings with another office holder.
Sure.
There are well established procedures in terms of Government tendering. We have a very vigilant Public Accounts Committee. We have a value for money audit covering these issues that I steered through the Comptroller and Auditor General Bill.
We knew all this before this Bill was drafted. The Minister is accusing us of time wasting, but she spends a lot of time answering questions we do not ask. I am forming the impression that she is not a good listener. Nobody on this side of the House said the Bill was full of loopholes. In fact, I said there are very few loopholes in it, and that it bears the signs of having been toiled over for a very long time. I said there are a few loopholes in it, a couple of which are large enough for an elephant to escape through.
May I put a simple, straightforward question to her? Is it not the case that if the entire present Cabinet, or any future Cabinet, had children who had extensive businesses but in which the Ministers themselves did not have any shareholding, every one of them could benefit from the business migration scheme and nothing in this Bill would trigger an investigation or declaration?
I can go even further and relate the issue to the question I asked earlier, and to which the Minister did not reply. We are all aware of allegations and suspicions in the past, and presumably this is why this legislation is before us but in relation to these matters, will anyone be found guilty under the terms of this Bill? Will anyone be prevented by its provisions from doing some of the things alleged to have been done in the past?
This arises in the amendments to section 14. Under the Bill office holders are required to register with the commission a list of their additional interests. It is entitled to make special reports if it considers there has been unethical behaviour.
I think that is very naive.
What are additional interests?
Additional interests are the interests of spouses or children which will be available to the commission.
There is a point which the Minister seems to continually ignore. We may have a communications difficulty but the point is straightforward. The commission has no function investigating a case where there was no obligation to inform it in the first place.
The commission, under section 26, can make reports as it sees fit.
It is not the function of the commission to make reports about the state of Medugorje or anything else.
We do not have jurisdiction there.
It can only deal with the functions it is given, that is, to detail circumstances in which decisions have been made which were to be reported to it but were not. The complaints it can entertain are restricted to allegations that people have infringed the provisions of the statute.
It can also report under section 26.
It cannot report unless there is a complaint. It cannot query whether something was a good idea last month; the Minister said this a number of times. It has no roving commission of inquiry to investigate circumstances where there is no duty to inform it of something. The Minister should bear in mind that its purpose is to receive information which people are obliged to give it and to deal with complaints when people who are obliged to declare interests under the Bill and comply with its provisions have failed to do so. It is not there to say it was terrible that one Minister gave another a contract. Its members will have read in the reports of this committee, which debated the Bill which established the commission, that this is impractical and would be an intrusion on the privacy of those Ministers. The Minister cannot have it both ways. She cannot say it is part of the commission's function to say that, although this was not a registerable or a declarable interest, it can bring a report to the Dáil saying it disapproves of this behaviour. It is a pity the Bill did not cover this.
The Minister will have to give this serious consideration. We all accept she is committed to this issue. A Minister would have to be very stupid or — I hope the Minister pardons me for saying this — as naive as she appears to be on these matters to be caught under this proposed legislation.
That is an unfair remark and Deputy Currie should withdraw it.
The Deputy should withdraw the word "naive" and substitute the words "indulgent and trusting".
There is no imputation there. If Ministers are prepared to be involved in unethical acts, they do not have to be particularly devious to be able to get away with it. If people continue to do things which they managed to get away with in the past, they will not be caught under the provisions of this Bill. I am beginning to wonder if it is worthwhile. I say this as a committed supporter of the principle of the Bill.
In case we are accused of unnecessarily delaying the debate, it is probably desirable that by the end of this meeting tonight we should have dealt with section 2. I echo what Deputy Currie said. The more I consider the ministerial justification for some of the Bill's provisions, the more shocked I am and the more convinced I am that if the public were here listening to this debate they would be open mouthed at the one or two major loopholes the Minister is leaving in the legislation and the reasons she is advancing for them, which appear to be based on a strange view of the law that anything else would intrude on people's privacy. The Minister has constantly trotted out the excuse that somebody who is a relative of a Minister should not be disadvantaged.
Or advantaged.
Mr. McDowell
There is no advantage or disadvantage for a Minister if he proposes to give another Minister's son or daughter a large contract. There is no disadvantage for him writing a note to the Taoiseach and the chairman of the commission saying he is taking that decision, if it is an above board and straightforward deal. In those circumstances the other Minister's children will take their £2 million or whatever. They would know that somewhere in the Oireachtas a letter was delivered to the commissioners. From what else would they suffer?
I agree we should conclude section 2.
I apologise that I made a mistake by referring to section 2 (3) when I meant to say section 2 (4). For the purposes of this Act a person shall be deemed to have an interest in property if the person is regarded as having for the purposes of the Capital Acquisitions Tax Act, 1976, the power to make a disposition of that interest. This section is designed to cover a situation where somebody artificially puts property into the name of another.
This deals with an earlier point I raised.
I will again look at the wording to see if it is the most effective way of meeting what we intend by the particular definition.
I hope the Minister does not take it that we have concluded raising questions, in particular about direct personal knowledge and connected persons. We will return to them when we discuss the relevant sections.
This Bill has been carefully drafted with the serious intention of raising standards and trust in public life. I believe we have drafted a Bill which does meet public concerns in this area. It is not a Bill with major wide loopholes as has been suggested by Opposition Deputies. I reject that suggestion. However, I repeat that I am open to considering any way in which this Bill can be improved so that its aims can be achieved.
I am aware that this Bill is a watered down version of what it was — I do not know what that kind of knowledge is called, actual, imputed or third hand — and that the Minister has to defend the Bill with which she is left by the process of Government. However, the criticisms we have levelled against it are not intemperate. I believe if the great jury of public opinion was listening here today, it would say that our criticisms are right and that the Minister is wrong.
Question put and agreed to.
The committee stands adjourned. I do not think it possible to sit next week having regard to the schedules of the Minister and the committee Members. Hopefully, we can return early in September. I would like — as I am sure would the Minister of State and the members of this committee — to try to complete this Stage of the Bill prior to the resumption of the Dáil, if at all possible.
As everybody is aware, Deputy Cox has resigned. He has conveyed to me his thanks and appreciation of the courtesy which was shown to him by his fellow committee Members and also the Clerk of the committee and those associated with it. I am sure that Deputy McDowell will reply admirably on our behalf.
The Select Committee adjourned at 9.5 p.m. sine die.