It is proposed to adjourn this meeting at 1 p.m. Is that agreed? Agreed.
SECTION 12.
Debate resumed on amendment No. 28.
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".
—Deputy Rabbitte.
I was reasonably happy with the Minister's reassurance on this matter. When we last discussed this amendment, I was seeking clarity from the Minister on the different regime that applies for office holders as compared to Members. It appears there is a secret conduit for allegations against office holders to be dealt with in private. However, the sentence, if one is appropriate, would be meted out by a different committee which did not hear the evidence or sit on the commission that heard the case against that office holder. It goes to the root of one of the major complaints this side of the House has making about this Bill. While it is rigorous on ordinary Members who have little patronage or influence to dispense, it seems to apply a different standard to office holders who are able to make decisions where there could be a potential conflict of interest.
I am happy, on the basis of what the Minister said, to withdraw the amendment. However, now that we are discussing the separate section of the Bill dealing with office holders and the regime that applies to them, I would like to hear the Minister on why such secrecy should surround the hearing of allegations against office holders and why there is, apparently, no provision in the Bill to hear a case against an office holder as a Member of the House? An office holder is not amenable under this provision if he pleads that he did whatever is alleged against him as a Member of the House.
I think Deputy Rabbitte misunderstands the thrust of the Bill. It is, in fact, much tougher on office holders than on ordinary Members and that is, what the Deputy would wish. In providing for the commission, we have provided for a demonstrably independent and powerful investigative mechanism which is seen to be independent of party politics. We can see, for example, that one would not have an investigation against a Minister stymied by the fact that Members of that Minister's party were able to stop or filibuster it at a select committee, which is why we have put independent mechanism in place.
Under the Bill the procedures that apply to the sittings of the committee and the commission are identical and they are contained in section 30. Section 39 states that "sittings of a Committee or a Commission for the purposes of an investigation by it under this Act may be held in private". They do not have to be held in private but they may be. That applies equally to the committee and to the commission. Finally, any reports made by the Commission, a demonstrably independent body, will come back to the Dáil or the relevant House and the Minister will be answerable to the House. If a Minister transgresses in terms of his or her functions as a Member, that transgression will be investigated by the demonstrably independent and powerful commission. Having seen the full evidence and conclusions in the commission's report, the House can determine an appropriate sanction.
The Minister said that meetings may be held in private and they do not have to be, but the reality is that in the rather exceptional circumstances that are envisaged, where an office holder would be arraigned before the commission, in my view, once the provision is there, any office holder, for all the reasons that we have spent a great deal of time discussing, will opt for a hearing in private. Secondly, the Minister has not reassured me on the point of the amenability of the office holder as a Member. It is a cardinal principle of any jurisprudence that hearing the evidence is central to being able to arrive at a conclusion, but what is suggested here is that a report will be prepared and submitted to a committee that was not present at the time. I have some serious concerns about that.
Finally, I would be reassured if the Minister could show me where in the Bill an office holder is amenable as a Member. If an office holder pleads a defence against any charge that he was not acting as an office holder, but acting as a Member, as a constituency T.D., where is it stated in the Bill that he is amenable? He certainly is not amenable in the section dealing with Members which excludes office holders. Throughout sections 8 and 9 the phrase "other than a Member who is an office holder", is used. Perhaps, the Minister can point out to me where it is provided for that if a Minister or an office holder pleads normal constituency routine as his or her defence, they are amenable.
In section 21 (1).
Is amendment No. 28 being withdrawn? Deputy Rabbitte intimated that at the last meeting.
Section 21 (1) states:
A person (other than a member) who considers that a person may have contravened Part II, III or IV at a time when he or she was an office holder may make a complaint in writing in relation to the matter to the Clerk and, subject to subsection (2), the Clerk shall refer the matter to the Commission and shall furnish a copy of the complaint to the Commission.
The Deputy should refer to Part II.
I am not being deliberately obtuse here.
Offences or transgressions under Part II refer to transgressions in one's capacity as an ordinary Member. So a transgression in one's capacity as an ordinary Member would go to the Commission under section 21 (1). At the last meeting Deputy McDowell pointed out a drafting flaw involving somebody who is currently an office holder and who had transgressed at a time when they were a Member, as distinct from currently. We will address that with an appropriate amendment on Report Stage. The point Deputy Rabbitte raised is, in fact, covered under section 21 (1). An office holder who transgresses in their capacity as a Member is caught by the phrase "a person may have contravened Part II" because Part II refers to the duties of any Member, including an office holder.
We will consider the amendment on Report Stage and I will withdraw amendment No. 28.
Amendment, by leave, withdrawn.
Section 12 agreed to.