Amendment Nos. 65 and 66 were already discussed with amendment No. 61.
SECTION 22.
I move amendment No. 65:
In page 28, subsection (1) (b), line 12, to delete "or" where it secondly occurs.
Amendment agreed to.
I move amendment No. 66:
In page 28, subsection (1) (b), between lines 12 and 13, to insert the following:
"(ii) a person who is an office holder and who may have contravened Part II before becoming an office holder, or"
Amendment agreed to.
I move amendment No. 67:
In page 28, subsection (1) (b), line 18, after "he" to insert "or she".
This is a minor drafting amendment.
I thought the Minister for Equality and Law Reform explained this matter about "he" or "she" quite recently, that according to the Interpretation Act it is not necessary to have all these "he's" or "she's".
The Interpretation Act, 1937 says that "he always includes she" and the Minister for Equality and Law Reform recently put a Bill before the Dáil to say that "she" always includes "he". Now we have the worst of both worlds because we are putting "he or she" in everything. We might as well have neither provision.
This is the year of political correctness.
I am very happy to see this because people reading this Bill will accept that anybody who can be a member of a commission can be an office holder who is also female.
Amendment agreed to.
Amendments Nos. 68 and 69 were already discussed with amendment No. 61.
I move amendment No. 68:
In page 28, subsection (1) (b), line 19, to delete "or".
Amendment agreed to.
I move amendment No. 69:
In page 28, subsection (1) (b), between lines 19 and 20, to insert the following:
"(II) the person referred to in sub paragraph (ii) contravened Part II before becoming an office holder, or".
Amendment agreed to.
I move amendment No. 70:
In page 28, subsection (2), line 39, to delete "do so" and substitute "carry it out".
This is a technical amendment.
Amendment agreed to.
Question proposed: "That section 22, as amended, stand part of the Bill."
The purpose of section 22, from my reading of it, is that the commission may initiate its own investigation. Is that the basis of this section?
The section deals with the commission investigating complaints or investigating on its own initiative. It provides that the commission will consult with the Minister, and sponsoring Department, where it is looking at the activities of a semi-State body and can decide whether or not to carry out its own investigation. It can decide not to investigate if the Department involved is carrying out a thorough investigation of its own.
What is the purpose of the section then?
The purpose of the section is to confirm that the commission can carry out investigations and underlines its powers and independence. There is no constraint placed on the commission regarding the investigation of office holders or special advisers. It is free to initiatie investigations of possible contraventions by anyone from this group without consultation. When the commission deals with the public sector, semi-State bodies and public servants it is obliged to consult with the relevant Government Departments. This is because there is an onus on a sponsoring Department to be aware of what is going on in the semi-State bodies under its control. Individual Departments have a responsibility for the civil servants in those Departments. It is to ensure that they are kept fully aware of what is going on and to provide a mechanism to avoid dual or parallel investigations.
So the commission can initiate investigations of special advisers, office holders etc. without notifying anybody, but if it is going to investigate a director of a semi-State company then it must inform the parent Department and the company concerned?
If the commission is initiating an investigation it must consult with the parent Department in relation to public service employees. When a complaint is received it is investigated. There are no constraints about consultation if the commission wants to investigate the conduct of an office holder or special adviser.
Can the commission investigate a person who may have ceased to be an office holder?
That is correct.
Reading the explanatory memorandum, that does not apply in the case of Members of the Oireachtas.
No. It does not.
What is the situation there?
When they cease to be Members of the Oireachtas that is the end of it. The electorate has given its verdict.
Is it right to say that the commission cannot simply decide not to have an investigation? It is obliged not to have an investigation if it arrives at the view that an adequate investigation cannot or will not be carried out by the Minister.
That is correct.
So if the Minister decides to investigate a matter in those circumstances, the commission is obliged not to carry out its own investigation.
No. That is a misreading of what the section says.
That is putting it too far. If the Minister says, "I am carrying out an investigation"?
The commission has to satisfy itself that that would be an adequate investigation. Unless the commission is satisfied in this regard, it will carry out its own investigation.
Is there not a weakness there? It would be a huge insult to a Minister halfway through an investigation for the commission to say, "hands off". If it goes ahead with its own investigation it would be a statement that the Minister's would not be adequate. Perhaps this goes too far. It would be a calculated public insult to a Minister for the commission to commence its investigation because it would carry an implicit statement that the Minister could not be trusted to do the job.
In effect, you may often be talking in terms of a Department rather than a Minister. The commission has particular powers that may not be available to the investigating Department. It may be appropriate that it can go further in terms of its powers to compel witnesses and so on. The commission is independent and is not a tool of the Executive. That is important and something the Deputy would recognise on reflection.
I accept that, but the law we are putting into place now contains a statement that the commission has to back off unless it finds that the Minister's investigation would be inadequate for whatever reason.
The final shout is with the commission. It is completely independent in how it arrives at its decision. It will not be influenced; if it feels the investigation does not go far enough or is not good enough it is perfectly entitled to come to that view. It may well be for practical reasons it comes to that view because it has tougher powers of investigation.
Would the section not be better if the word "and" at the beginning of line 40 was taken out and replaced by "or" so that the commission could decide on discretionary grounds to do an investigation going on?
I would be happy to look at the drafting of that on Report Stage.
It means that if the commission overrules a Minister it is legally finding that he will not carry out an adequate investigation, which is a slap in the face to a Minister.
I will look at the wording on Report Stage.
Question put and agreed to.