Amendments Nos. 58, 59 and 60 form a composite proposal and may be discussed together. Is that agreed? Agreed.
SECTION 20.
I move amendment No. 58:
In page 25, subsection (3) (a), line 1, before "Where" to insert "Subject to paragraph (b),".
These are technical amendments to provide for where a member of the commission is not able to function or would not function because he or she has already judged the case, or would have a conflict of interest in the conduct of a particular case, and provides for his or her replacement in such an eventuality. For example, the Ombudsman would not sit on the commission in judgment on something relating to the Ombudsman's office.
Amendment agreed to.
I move amendment No. 59:
In page 25, subsection (3) (a), lines 18 to 22, to delete all words from and including "and" in line 18, down to and including "Commission" in line 22.
Amendment agreed to.
I move amendment No. 60:
In page 25, subsection (3), between lines 22 and 23, to insert the following:
"(b) If a person falling, pursuant to paragraph (a), to be appointed to be a member of the Commission cannot be so appointed or the Commission consider that it would not be appropriate so to appoint that person, the Minister shall appoint such other person as the Commission may nominate for the purpose to be such a member for the duration of the inability or vacancy concerned.
(c) Upon the appointment of a person pursuant to paragraph (a) or (b) to be a member of the Commission for the duration of an inability, the member of the Commission who is temporarily unable to act as such member shall be deemed for such duration not to be a member of the Commission.".
Amendment agreed to.
Question proposed: "That section 20, as amended, stand part of the Bill."
Section 20 deals with the establishment of the Commission, which is the watchdog we have under the provisions of the Bill. It also provides for the appointment of substitutes in the event of a member being unable to act for any reason. The section provides for the election of one of the members as chairman, the provision of a secretarial service and so on.
I presume the purpose of the section is to outline how the commission will conduct its business.
Section 30 goes into more detail about how the commission will conduct its business. This section deals with establishment of the commission, having a chairman, how a majority is decided, and such matters. It is modelled on the first Schedule of the Garda Síochána (Complaints) Act, 1986. It is very much the standard procedure for commissions or overseeing bodies of this type. It is almost a mirror image of what we have for the Garda Complaints Board.
We have some recent experience of investigations. If the Commission is to investigate a complaint, how does it go about this? Does it have powers to compel people to answer questions?
It does.
We have all become experts on natural justice and such matters in the recent past. How are these taken into account in this area?
The whole area of natural justice and procedures are addressed in section 30. Section 20 is about establishing the commission.
In the case of a director of a Semi-State body or a non-civil servant, as opposed to an Oireachtas member or an office holder, what powers would the commission have to compel that person to attend?
They have powers to compel such a person to attend. Under the Bill it a criminal offence not to co-operate with a Commission investigation.
Under this section?
Not under this section but further on in the Bill.
An ordinary businessman who accepted an appointment to a State board could find himself, under these provisions, being brought, under pain of a prison sentence——
Either a fine or a prison sentence. If there is an investigation and people do not co-operate with it, there is provision for criminal penalties. We want the investigations to succeed.
Has a witness called before the commission the same rights as when before a court?
Yes. It is covered further on in the Bill. It is explicitly provided for.
This section is about the setting up of the commission its membership, quorums and so on?
That is the purpose of this section.
Question put and agreed to.
SECTION 21.
Amendments Nos. 61, 62, 63, 66, 69, 71 and 72 are related. Amendment No. 65 is consequential on amendment No. 66 and amendment No. 68 is consequential on Amendment No. 69 and amendment No. 73 is also consequential. Amendments Nos. 61, 62, 63, 65, 66, 68, 69, 70, 71 and 73 can be taken together by agreement. Agreed.
I move amendment No. 61:
In page 26, subsection (1), to delete lines 44 to 46 and substitute the following:
"(1) A person (other than a member) who considers that—
(a) a person may have contravened Part II, III or IV at a time when he or she was an office holder, or
(b)that a person who is an office holder may have contravened Part II before becoming an office holder.
may make a complaint in writing in relation".
This set of amendments relates to a gap in the Bill identified by Deputy McDowell when we last discussed it, a contravention of the Bill by a serving office holder committed at a time when he or she was an ordinary member. There was a loophole in the way we drafted the Bill and these amendments address it.
Amendment agreed to.
I move amendment No. 62:
In page 27, subsection (2) (b), line 7, to delete "office holder" and substitute "person".
Amendment agreed to.
I move amendment No. 63:
In page 27, subsection (3), to delete lines 9 and 10, and substitute the following:
"(3) member who considers that—
(a) a person may have contravened Part II, III or IV at a time when he or she was an office holder, or
(b) that a person who is an office holder may have contravened Part II before becoming an office holder,".
Amendment agreed to.
I move amendment No. 64:
In page 28, subsection (4) (d), line 2, after "1956" to insert ", but excluding a Minister of the Government"
This is a technical amendment in relation to an unintended overlap between section 4 (b) (i) and 4 (d). It is a drafting amendment.
Amendment agreed to.
Question proposed: "That section 21, as amended, stand part of the Bill."
This section sets out arrangements regarding complaints in respect of possible contraventions by office holders, special advisers, designated directors and those in designated positions of employment. Provision is made for complaints by the general public to the relevant clerk in respect of possible contraventions by office holders. The provision is made for complaints by Members regarding possible contravention by office holders directly to the commission. Provision is made for complaints to the commission in respect of designated directors, holders of designated positions of employment and special advisers.
If an ordinary member of the public makes a complaint about a member that goes to the Clerk and he can decide to throw it out if he believes it is frivolous or vexatious. It provides a filter for complaints. For example, I think we have all received frivolous or vexatious letters, and they would be clearly apparent. Obviously, we are providing that in the case of a member making a complaint about an office holder, it would go straight to the commission and would not be filtered out as frivolous or vexatious.
Is it intended that the commission will have a secretariat?
Yes.
A full-time or part-time secretariat?
Section 20 provides for an appropriate secretariat from moneys voted by the Oireachtas.
When the whole commission is set up will there be a full-time secretariat? I presume its first job will be to produce regulations that office holders would have to carry around in their pockets. I suppose producing that booklet is their first job and that we will have myriad regulations. Will the second job of the commission be to oversee this or will a secretariat be seconded from time to time? Under what Department will it operate?
I envisage a full-time job for somebody in this, in terms of setting the whole thing up and overseeing it and the commission will also be able to hire expertise from time to time. If it is conducting a major investigation, the commission would be able to take on additional resources.
I presume "Clerk" means Clerk of the Dáil, if it is a complaint against a Member of the Dáil and Clerk of the Seanad in the case of a Member of that House. If the Clerk decides that the complaint, say from a member of the public, is not frivolous is it then referred to the meeting of the commission who will decide how this will be investigated?
If there is an allegation against an office holder, the Clerk decides there is substance to it and not frivolous or vexatious then it goes to the commission who investigate.
If it is a complaint against an ordinary Member of the Dáil?
If it is a complaint against an ordinary Member of the Dáil there is a select committee of the Dáil which investigates——
Under what section?
Section 8. That is because under the Constitution the Houses regulate their own affairs so the committee does the investigation. Again, it has similar powers to the commission. The powers given to the commission are a mirror image of the power we are giving to the select committee.
If it is a complaint against a director of a semi-State company, (a) to whom is the complaint made, (b) who decides whether it is frivolous and (c) who will initiate the investigation?
If a complaint goes the commission, it can make a decision about whether to instigate a complaint but first, under the Bill, they consult the sponsoring Department who supervises the semi-State body concerned and the Minister for Finance. Then the commission decides whether to go ahead with an investigation. For example, if there was a complaint against a particular semi-State body and, on going to the sponsoring Department the commission became aware that there was a thorough ongoing investigation by that Department, presumably the commission will decide it would not conduct a parallel investigation and would rely on what the Department was doing. If it decided it needed to conduct its own investigation, because of its additional powers of compellability, again the commission is free to do that.
The commission will decide what course of action to take?
Yes.
How does the Minister envisage the commission investigating a complaint against any of the persons concerned, office holders, directors of semi-State companies or public servants? Will it hire outside expertise, consult the Garda or appoint people who would have investigating powers like the Garda? Surely the Garda — as far as I am aware and subject to what other learned friends might be able to tell me — investigate wrongdoings by people. We do not have any other extra body that does those kind of investigations. They may report to somebody and it is always referred to the Director of Public Prosecutions, who may initiate an action, but I do not think any other organisation is entitled to carry out that type of work.
Section 30 deals with the powers of the committee and the commission to investigate. They can also refer a matter to the DPP, if they come across what they feel may be a criminal matter, and suspend their own investigation. The commission also has powers to send for persons, papers and records with the backing of criminal sanction if somebody does not co-operate with the committee. Again, it is up to the commission to decide — let us say it was a question involving accountancy matters — whether it hired an accountant. That would be a matter for itself but we have put the Comptroller and Auditor General, a man who knows a lot about money, on the commission so his expertise will be available.
It may hire outside experts who have powers under this Bill, to investigate further. I visualise a situation that, to clarify whether a person was involved in wrongdoing, the investigator would have to look at the affairs of another company. I do not know how that company would respond. Would the investigator have the same powers of investigation as the Garda?
The commission has power to summon witnesses and call for papers and records. If it wants to hire expertise to examine those records — if they are complex accountancy documents or legal documents — it could hire or employ somebody who would have the expertise to decipher the amount of material it is entitled to send for.
I am sure you have noticed recently that the powers of the investigating committee, inquiry or person conducting the inquiry have often been challenged in the courts. Is it the same operation here?
What the commission will be investigating will be fairly straightforward. There may be occasions when it needs to hire additional specialist expertise rather than examine the kind of material being obtained. It is a very high-powered commission. It has accountancy expertise and the Ombudsman is very experienced in the whole area of administration. I believe that within the membership of the commission, its back-up staff and whatever additional staff it hires, it will be able to conduct any investigation required.
Suppose the commission inquired into a complaint which was later proved to be frivolous and the person being investigated incurred large expenses, would that person have a right to claim expenses or costs because they would have that right in court?
We have included a provision so that if somebody brings a complaint which is found to be frivolous and vexatious, costs can be levied against that person. That is a deterrent against people making wild allegations which they cannot back up.
How much is the limit of that cost?
As it stands the limit is £1,000. I have signalled that I will look at that again before Report Stage.
Deputy McDowell would not turn up to see you for that amount and neither would Deputy Penrose.
A five minute job.
I would not be to anxious to turn up myself.
Question put and agreed to.