Select Committee on Finance and General Affairs debate -
Tuesday, 27 Sep 1994

SECTION 12.

Mr. Rabbitte

I move amendment No. 28:

In page 16, subsection (2), lines 17 and 18, to delete "in good faith and in the belief that his or her action was".

Through no fault of the Bills Office but entirely through my fault, the part of my amendment which seeks to delete certain words is included but my alternative is not. Nonetheless, I want to move the first part of it and advert, if I may, in argument to the second part.

This relates to the guidelines which will be published from time to time by the committee in terms of the imposition or requirement on Members and for their information in terms of what they have to comply with and so on. Putting the boot on the other foot for a moment and looking at it from the point of view of serious contravention, it seems that it is possible, as it is worded that none of the penalties envisaged in section 27 would apply if a Member argues convincingly that he acted in good faith and did not know about the existence of the guidelines.

The purpose of the missing part of my amendment was to enforce some kind of objective test where there are reasonable grounds for believing that a Member did not know he or she was not acting in accordance with the guidelines. As it stands it seems, like the argument we had about the definition of actual knowledge contained in section 2 of the Bill where it simply rules out direct or imputed knowledge, knowledge which can be inferred or whatever, all a Member need plead is ignorance to escape the strictures envisaged in section 27. He can say he simply did not know or that he acted in good faith.

We have just been through the labyrinthine procedures we have agreed for ordinary Members of the House and the capacity to get tripped up. However, if any Member of the House, now or in the future, wanted to deliberately evade the terms of this Bill he could do so. I cannot see how a Member of the House who will be presented with, from time to time, the guidelines to be followed, could on a serious charge — as could only be the case in section 5 or section 7 — plead that he did not know or was acting in good faith. Some more objective test has to be enshrined in the legislation where there are reasonable grounds for believing that the person believed he acted in accordance with the guidelines etc.

Mr. M. McDowell

Section 12 (2) provides that:

A committee shall not recommend the action specified in paragraph (b), (c) or (d) of section 27 (2) in respect of a contravention....if it determines that he or she acted in good faith and in the belief that his or her action was in accordance with the guidelines published or advice given in writing by the Committee under this section or, in the case of a member who is an office holder, by the Commission under section 24.

Section 27 provides that:

Where a copy of a report of a Committee or a copy of a report of the Commission furnished to a Committee is laid before either House, the Committee may, if it considers it to be appropriate, having regard to all the circumstances of the case, to do so, cause a motion to be moved in that House for a resolution that such action or actions specified in subsection (2) as may be specified in the resolution and is or are reasonable in all the circumstances be taken by that House in relation to the matter.

Section 27 (2) goes on to say that the actions are: taking note of the report, censuring, suspension or non payment of Oireachtas Members' allowances.

I am somewhat at a loss to understand this. How could a committee specify action in section 27 (2) in respect of an office holder who was not complying with a requirement of the commission? I would like the Minister to explain to me in what circumstances a committee of the House would decide whether an office holder was in contravention of commission guidelines? I thought that the committees had no right to investigate the activities of office holders. I do not see where they get their original jurisdiction to embark on an investigation into whether an office holder is complying with commission guidelines. Perhaps I am wrong and there is some provision.

Mr. Rabbitte

In the case of an office holder who is no longer an office holder.

Mr. M. McDowell

It states in section 12 (2) that "A Committee shall not recommend the action...or, in the case of a member who is an office holder, by the Commission under section 24". I wonder how it could ever get before a committee that an office holder was breaching commission guidelines.

Ms E. Fitzgerald

On the first point raised by Deputy Rabbitte, the purpose of the good faith formula is to ensure that where a Member acted in good faith, and the committee so finds, if a genuine mistake has been made a report would be laid before the House. The House can take note of the report but there would be no further penal action. It would be up to the committee members to decide whether a person acted in good faith. It will not simply be a matter of an individual declaring he acted in good faith; he will have to satisfy his peers. The structure of the Bill provides that Members are judged by their peers and not a court, as Deputy Walsh suggested in his previous intervention.

On the role of the committee and the commission, under section 23 (1) (c) when the commission carries out an investigation and finds that somebody has been in breach of the rules it refers its report for further action to the committee. That is where the committee comes in in terms of deciding the penalties for an office holder, such as suspension from the House and so on.

Mr. M. McDowell

So the commission decides whether Ministers have contravened——

Ms E. Fitzgerald

Whether Ministers have acted in good faith or otherwise.

Mr. M. McDowell

Then the committee says that it will decide whether to——

Ms E. Fitzgerald

In the light of that.

Mr. M. McDowell

If the committee determines whether he or she acted in good faith, if the commission has already determined that he or she acted in good faith, innocently or whatever, how would the committee come to reconsider the matter under section 12 (2)?

Ms E. Fitzgerald

A committee in respect of an ordinary Member shall not recommend the action if it deems that the Member acted in good faith. The committee makes a determination on the good faith aspect in respect of an ordinary Member. The commission makes a ruling on whether there was a breach under section 24 which is an analogous provision. The reports of the commission go to the committee which can decide what penalties to recommend to the House.

Mr. M. McDowell

Does that mean even though a Minister acted in good faith the committee can recommend that he be censured but cannot recommend his suspension? All the committee can do is suggest that it takes note. Is that correct?

Ms E. Fitzgerald

Under section 23 the commission decides if there has been a contravention. Section 23 (3) (c) (ii) states "whether the contravention was committed inadvertently, negligently, recklessly or intentionally", while (3) (c) (iii) states "whether the contravention was, in all the circumstances, a serious or a minor matter..." and (3) (c) (iv) states "whether the person acted in good faith and in the belief that his or her action was in accordance with guidelines published or advice given in writing by the Commission..." The commission in making an adjudication determines those matters. The report of the commission then goes to the committee which can recommend appropriate action to the House.

Mr. M. McDowell

I follow that, but how can two people arrive at the same view on the same issue? The committee must determine whether the person acted in good faith. The Minister is saying that the commission has already decided that in the case of office holders.

Mr. Rabbitte

Is it not extraordinary that one body carries out the investigation and hears the evidence but it is given to another body, which did not hear the evidence and was not present, to pass sentence?

Ms E. Fitzgerald

The report of the commission will be available to the committee.

Mr. Rabbitte

It is a most unusual principle in jurisprudence that someone else hears the action and makes a written report to the committee. The Minister has stoutly resisted the Minister being liable to the committee as a Member of the House. However, here she is giving the committee superior rights over the commission in terms of what might be called sentencing policy, even though the committee did not hear the evidence.

Ms E. Fitzgerald

Everybody, whether an office holder or Member, is ultimately answerable to the House. This is why if the commission finds there has been a breach in the case of an office holder the appropriate penalties are applied by the House.

Eamon Ó Cuív

I take it the commission carries out the investigation in the case of an office holder. The Minister is saying that having carried out the investigation, the committee could then recommend that action be taken or not taken. Is that a correct understanding of what is involved?

Ms E. Fitzgerald

This is dealt with under section 27, which deals with the action by the Houses when they have received a report. The House can take note of the report of the committee or commission, censure the office holder or Member, suspend the office holder or Member concerned from service of the House and suspend without pay. These are the actions that can be taken. Section 12 deals with where somebody acts in good faith and this has been so found by the appropriate body, whether that body is the committee in the case of an ordinary Member or the commission in the case of an office holder.

If somebody is technically in breach and it has been found on foot of an investigation that he acted in good faith or inadvertently, the full gamut of penalties does not apply. This is a protection for people who might unintentionally find themselves in breach of the Act. It is open to the committee to find that a member did not act in good faith and open to the commission to find that an office holder did not act in good faith. In that case, the good faith exemption disappears and the full rigours of the penalties may be employed by the House against the offending party.

Eamon Ó Cuív

I accept the good faith provision. If one examines the Schedule, the question that arises is declarable interest, for example, the present of £500. A person, in good faith, could believe that the item was worth £470 but it could be deemed that it was worth £503. The good faith provision must exist in those circumstances because, unlike Deputy Rabbitte, I believe that the declarable interests are quite broad if one takes the totality.

Certain things are difficult to value. If one is a collector, a steam engine is worth much, but it is not worth much to Iarnród Éireann. It depends on the value one puts on things. It depends on who is looking at it.

One must have the good faith provision but I am little puzzled by the mechanism. I take it that the commission investigates the case of an office holder while the committee investigates the case of an ordinary Member of the House. If the commission decides that a Minister was in technical breach, is the Minister stating that it has no role, that the committee subsequently decides that the Minister was technically in breach but it acted in good faith?

Mr. Rabbitte

The Minister is saying more than that. I did not seek the removal of the good faith provision. I seek to establish some objective test of who says it is in good faith. We will return to this point.

The Minister is now saying more than what Deputy Ó Cuív extrapolated. The Minister is saying that the five eminent persons who comprise the commission — the Comptroller and Auditor General, the Ombudsman, the Clerk of the Dáil, the Clerk of the Seanad and the Ceann Comhairle — can have their conclusion second guessed by the committee. It can over rule the commission. This is clearly what the Minister said in her earlier contribution.

The five eminent persons could conclude that there has been a breach but the committee could find that there was no breach, either pleading the good faith or another consideration. Perhaps it could be a consideration no more noble than a majority of Government representatives on the committee. I have some difficulty with a system of internal jurisdiction which proposes that the committee which hears the arguments is not the body that dispenses justice.

Ms E. Fitzgerald

The good faith exemption proposal under section 12 does not apply to section 27 (2) (a) which states "the taking note by the House concerned of the report of the Committee, or the report of the Commission, concerned,". The report comes into the public domain, as I understand it. Under section 27 (1) the committee is statutorily obliged to:

...cause a motion to be moved in that House for a resolution that such action or actions specified in subsection (2) as may be specified in the resolution and is or are reasonable in all the circumstances be taken by that House in relation to the matter.

The criterion of being reasonable applies to the actions of the committee. I am sure Deputy Rabbitte agrees that it would not be reasonable of the committee to overlook a serious breach simply because the breach was on the part of a member of the majority party.

Mr. Rabbitte

There is absolutely nothing to prevent it doing so. In my experience, with all due respect, the members of the majority party at any given time and whoever happens to comprise the majority would do anything that is in their political interests.

Ms E. Fitzgerald

This report will be before the House. Under section 27 there is a statutory obligation on the committee to act in a reasonable way. If a Minister is found to be in serious contravention and has not been dealt with by the appointing Taoiseach in the appropriate manner, it is open to the House to censor, suspend or suspend without pay if so recommended by the committee. In any event, the report of the commission will be published. There was much discussion earlier about the adverse effects of bad publicity perhaps unwittingly incurred. In this situation, if the commission finds somebody is wilfully in breach and does not have the defence of inadvertence or negligence, undoubtedly there would be publicity.

Mr. Rabbitte

The Minister said it would be evident if the committee acted in a reasonable way and that precisely is why I tabled this amendment. Instead of the phrase here "where it determines that he or she acted in good faith," it should read "if it determines there are reasonable grounds for believing he or she acted in good faith," otherwise there is no objective test as to whether the committee acted reasonably. The fact that the report is published will not change anything.

Without casting aspersions on any existing committee of the House, I am a member of the Committee on Procedures and Privileges and the work of that committee is guided expertly and diligently by the Ceann Comhairle. We do not have a striking record in terms of taking action against any colleagues who might have transgressed at any stage in the recent history of the House. The arguments made today indicate that often it comes down to politics.

Is the Minister saying — and we can be clear on this very quickly — that if the commission draws a conclusion that there is a breach, the committee can second-guess that? Can the committee decide that for whatever mitigating reason, the penalties envisaged in section 27 (2) (b) (c) or (d) will not apply? I am not clear about that. The section states:

"or, in the case of a member who is an office holder, by the Commission under section 24". Could the Minister explain what is so special about section 24?

Ms E. Fitzgerald

Section 24 is an analogous provision which deals with the question of guidelines. In the case of Members of the House, the guidelines are drawn up by the committee of the House in accordance with Article 15.10 of the Constitution where the House regulates its affairs. In the case of officeholders and other categories covered by the Bill, including senior public servants, senior executives and board members of State companies, the commission draws up the guidelines. When pursuing an investigation, the commission determines whether there was a factual breach of the guidelines or the Act. It determines if the breach was intentional or negligent, but in good faith due to a misunderstanding. It is a reasonable protection because nobody in this House wants to penalise somebody for something done inadvertently. We are interested in catching mortal sins not venial ones in this legislation.

There is no question of the committee second-guessing the commission. The commission will make its findings of fact and the report will then be published. It is up to the committee to decide in accordance with the House regulating its own affairs what action it recommends in respect of an office holder who is a Member of the House and who is in breach of the legislation in terms of applying the rules of the House. There are a range of penalties, including censoring, suspension, etc.

Mr. Rabbitte

Section 12 (2) reads — this may be a misunderstanding on my part —"A Committee shall not recommend the action" stipulated in section 27 as suspension, deduction of pay or whatever "in the case of a Member who is an office holder by the Commission under section 24. It seems that the committee is conferred with the freedom to not recommend that action in the case of a member who is an office holder under the guidelines drawn up under section 24, irrespective of the conclusion of the commission.

Ms E. Fitzgerald

No, the meaning of the subsection is that if a Member or an office holder is found by the commission to have acted in good faith, the committee shall not apply the range of sanctions, including censoring or suspension. In other words, if there is an inadvertent breach by an office holder acting in good faith and it is so found by the commission, the committee shall not in those circumstances apply the rigorous penalties, although the report will be published.

Mr. Rabbitte

Will the report indicate that it was an inadvertent breach?

Ms E. Fitzgerald

Yes, the report is required to state that. Section 23 (3) (c) states, in case the determination is that there has been a contravention of Part II, II or IV by the person:

(ii) whether the contravention was committed inadvertently, negligently, recklessly or intentionally,

(iii) whether the contravention was, in all the circumstances, a serious or a minor matter, and

(iv) whether the person acted in good faith and in the belief that his or her action was in accordance with guidelines published or advice given in writing by the Commission under section 24,

There will be a written report from the commission determining whether this person acted in good faith and in accordance with guidelines issued.

Mr. Rabbitte

Is the Minister saying that this is a constitutional imperative rather than any other consideration and that because the House must regulate its affairs, the committee rather than the commission must deal with sentencing policy? If that is what the Minister is saying, why have a commission? Why are office holders not amenable to the committee of the House if the concept is that the House regulates its affairs? Why should the committee of the House not consider charges made against an office holder? Why bring in five eminent persons and then ignore their conclusions? I have never heard of a jurisdiction where one body hears the evidence while another decides what the penalty should be.

Eamon Ó Cuív

The last sentence where the commission is mentioned relates to who gives the advice, etc. If the commission decides in the case of an office holder that there is a breach of the regulations and does not comment on whether it was in good faith or otherwise, is it open to the committee to make a determination on that by reopening the case and hearing it again? Does the committee act somewhat like the President on the advice of the Government; in other words, does it just implement the decisions of the commission? It is fair to ask that that point be clarified.

Ms E. Fitzgerald

Under section 23 the commission does not have any option, it must make a judgment on whether the action was in good faith or otherwise. The committee would not make a second judgment.

Éamon Ó Cuív

The committee's role is somewhat analogous to that of the President when she acts on the advice of the Government. The committee mechanically enforces the decision of the commission in the case of an office holder. Is that correct?

Ms E. Fitzgerald

The determination of fact is a matter for the commission and it must be contained in its report. It is up to the committee to make what it considers to be appropriate recommendations to the House for action by the House.

Éamon Ó Cuív

However, it has discretion.

Ms E. Fitzgerald

It is also open to the Taoiseach to take appropriate action. I would imagine, for example, that where there was a serious breach of the Act by a Minister, the Taoiseach might choose to dispense with that Minister's services.

Mr. Rabbitte

Will the Minister deal with my question? Is this organised as she proposes because it is a constitutional requirement? If it is a constitutional requirement, why does not the committee do the job rather than involving those eminent persons?

Ms E. Fitzgerald

The structure of the Bill is such that ordinary Members of the House will regulate themselves. Deputy Rabbitte and others have repeatedly pointed out that Ministers, being part of the Executive, are a great deal closer to the scene of the action and should satisfy higher standards. That is why we are establishing the commission mechanism. It is a high level body with power to investigate the actions of the Executive whether it is the Ministers, the senior Civil Service or the wider arm of the Executive in the form of State companies.

Mr. Rabbitte

That answer is fantastic and unconvincing. If I possessed any pomposity about my membership of the House, I would consider it offensive.

I do not believe there is a higher body. The Minister's argument is that the committee will make the decisions because the House regulates its own affairs and the committee represents the House and will report to the House in due course. It would be more convincing if the Minister suggested that for reasons of secrecy or confidentiality a complaint against an office holder will be brought before the commission. I am not convinced by her argument.

I am somewhat frustrated. The Minister may have laboured long and hard over this Bill but she appears to think that we have spent the past 18 months working on it also. I would appreciate being told her philosophical stance on some of these questions and how she arrived at her stance. I cannot divine what is in the Minister's mind. She argued earlier that under Article 15.10 of the Constitution the committee and not the commission must have the right to make these decisions. I am asking her to confirm that.

It is illogical to have one body hearing the evidence, conducting the investigation and listening to legal representation for a certain period of time while another body makes the decision. Why not have a committee of the House hear and investigate a complaint against an office holder? It is not true that Members of the House are subject to this regime — only Members of the House who are not office holders are subject to it. There is a special regime for office holders. There is also a secret court for the office holder which is comprised of eminent persons none of whose credentials I question. However, it is a secret court. The committee is then expected to draw its conclusion. That appears to be illogical. If the Minister were prepared to give me further information I might be convinced of the merit of her arguments.

Chairman

We agreed to adjourn at 5.15 p.m. It is proposed that the committee meet again on 11 October at 11 a.m.

The Select Committee adjourned at 5.15 p.m. until 11 a.m. on Tuesday, 11 October 1994.