Select Committee on Finance and General Affairs debate -
Wednesday, 5 Apr 1995

SECTION 27.

Minister of State at the Office of the Tánaiste (Ms E. Fitzgerald)

I move amendment No. 74:

In page 33, before line 1, to insert the following:

"(3) Where a report referred to in subsection (1), a copy of which has been laid before either House, includes a determination that the office holder or other member concerned acted in good faith and in the belief that his or her action was in accordance with guidelines published or advice given in writing under section 12 or, as the case may be, section 24, a Committee shall not recommend that the action specified in paragraph (b), (c) or (d) of subsection (2) be taken by the House.".

This is a drafting amendment which covers a situation where somebody has been found to have committed a contravention but in good faith and will not be liable to any penalties as a result.

Amendment agreed to.

Question proposed: "That section 27, as amended, stand part of the Bill."

Ms E. Fitzgerald

This section sets out the follow up action to be taken when a report finds that office holders or ordinary Members are in contravention. Select committees are obliged to lay reports of contraventions before the relevant House. Arising from this section, the relevant committee may cause a motion to be moved for a resolution that the House take any of the following actions: to note the report, to censure the Member or office holder or to suspend him or her from the House with or without pay. The actions proposed by the committee's motion must be reasonable, having regard to all the circumstances of the case.

Mr. Nealon

What does the Minister think about the duration of suspension? Various limits have been specified, but is it possible for the Minister to give an example of the duration for a particular offence?

Ms E. Fitzgerald

This is a matter for the House because, under the Constitution, the House regulates its own affairs. It is up to the select committee, which is composed of Members of the House, to decide an appropriate penalty with regard to all the circumstances of the case. Where a contravention was relatively minor, I imagine the committee might issue a rebuke or simply report and ask the House to note it. However, if a major contravention was involved, the Members would be entitled to recommend the suspension of the Member to the House and whether that suspension should be with or without pay having regard to the offence.

It would be up to the Members of the Select Committee to make a decision on the appropriate penalty, having regard to the gravity of the offence, before asking the House to exercise it. The question of suspension would arise only in cases where there had been a very serious contravention of the Act.

Mr. N. Ahern

Will guidelines on suspensions be laid down? Last week the Minister mentioned the commission, for example, or somebody else laying down guidelines. With regard to the previous Deputy's question, what are the possible range of suspensions?

Ms E. Fitzgerald

Suspension would be for not more than 30 days.

Mr. Nealon

Given the situation which has arisen this morning involving Members of the House of Commons in Britain, whose salaries and allowances for a particular period have been deducted for offences regarding payment for questions, a very serious position could arise here. It is one thing to be suspended, but another matter if one's income or means of livelihood is taken away for a period. If a person is found to have committed an offence, it is a serious matter and sanctions must be imposed. This is the purpose of the Bill but all Deputies have obligations and many have no resources apart from their salary. The longer one serves in the House, the less well off one becomes. This is also a fact of life.

These type of suspensions could be extremely difficult. Deputy Ahern asked if there will be any guidelines. In legal cases, for example, precedents are set. There might be a particularly hard line group at the beginning, which would impose very difficult suspensions. There might also be a very liberal group at the start which would not impose sufficient sanctions. We must watch this position carefully when the Bill is passed.

I would be happier if there was some indication of the type of penalties we are considering. Will guidance be given at any stage as to what might be appropriate? The House regulates its own affairs, but who will be the main motivating factor when this matter is out of the Minister's hands in terms of the enactment of the Bill? Who will then decide the main motivator in terms of indicating penalties? One of the important things arising from the Bill will be the sanctions. The Minister introduced the Bill and we are debating it on Committee Stage, but other people will make crucial decisions arising from it. How will guidelines be provided in this regard?

Acting Chairman

The Deputy raised a valid point. Does the Minister wish to respond?

Ms E. Fitzgerald

Deputy Nealon raised the case in Britain where two MPs took cash for asking questions which was considered by their peers on the Committee on Procedure and Privileges to be a very serious breach of the privileges of the House of Commons. The committee decided the appropriate penalty. We are establishing a similar set-up, where the committee will make the decision on appropriate penalties. A whole range of options is open to the committee, from noting a report, censuring a Member to suspending a Member with pay, on part pay or without pay for up to 30 days.

There is a range of possible sanctions and common-sense will enable the select committee, which comprises Members of the House, to judge what the appropriate sanction or penalty should be in any particular case. Members will take a common-sense view and if there is a very serious breach of the privileges of the House, such as the serious abuse of position by a Member, the committee will be empowered to take an appropriately serious view and exact serious penalties.

However, if it is a less serious breach, it is open to the select committee to use one of the lesser forms of penalty, such as noting the report and presenting it, in the context of whatever subsequent publicity would be involved, censuring the Member or suspending the Member on full pay. I am sure there is a great deal of common sense and wisdom on the part of the members of the select committee in relation to these issues and what would be approprite.

Acting Chairman

Before I call Deputy Connolly, I wish to clarify one point. How will the select committee, which will make those decisions, be selected?

Ms E. Fitzgerald

By a committee of selection in the normal manner. It will be chaired by the Ceann Comhairle in the case of the Deputies and by the Cathaoirleach in the case of Senators.

Mr. Connolly

This part of the Bill does not state what type of fine may be imposed. As Deputy Nealon said, an office holder may be suspended from the House without pay for a specified period. Somebody mentioned the case earlier about MPs receiving £1,000 for a question, but one would not receive 1,000p here. I am speaking with much knowledge in this regard. We will not have any problems here. I could be more blunt, but I will restrain myself.

The section covers the position in relation to reports where a Member or office holder has been found to be in contravention of the Act. A Member may contravene the Act through neglect or on a minor issue, such as a shareholding, land or property he overlooked. He could be a director of a group or scheme where he is more a liability than anything else. Will this be considered a serious matter and will the committee then decide that the Member has breached the Act? I am open to correction, but as I understand it, most Members of both Houses depend on their Oireachtas salaries.

Acting Chairman

It is a full-time job.

Mr. Connolly

It would be very serious for a Member, his wife and family if he was suspended because he would have nothing else.

Mr. Creed

Would he get social welfare?

Mr. Connolly

No, because he would not have contributions. He might be entitled to unemployment assistance.

Mr. D. Wallace

I am concerned about this section. This select committee of the House, which is unknown at present, will have more power in relation to guidelines drawn up. I believe the legislation should be definitive. While I accept that guidelines and regulations are the prerogative of the Minister at any time, I am concerned about the power and authority of this select committee.

We are introducing legislation which will have implications for us and we want to ensure that it does what it is supposed to do, to ensure we abide by its terms so that no suspicion can be directed at us. I am concerned about this section and the Minister must look at it again. It is not good enough that a select committee — we do not know its members or who will draw up the guidelines — will impinge on us, whether we have an income or not. Is there not a reason for bringing in good regulations?

The Minister must elaborate on this because legislation should be specific and there should be clear guidelines as to the terms of section 27.

Mr. McCreevy

I see a problem for this committee in deciding on this section. I ask the Minister to look at a particular subsection, which might resolve the problem without any great financial cost or without a political principle being conceded. The Minister should remove subsection (2) (d) relating to the non-payment of salary. Section 27 (3) recognises that even if a person is suspended for a period without pay, it will not be held against them for pension purposes, etc.

There is a problem here for all Members because, under the Constitution, only a committee of one's peers and the House could decide its rules and regulations. The select committee must be one of the Dáil Members of other professions would like to be tried by their peers and it is a principle of justice to be tried by one's peers in a court.

There is a difficulty, however, when it comes to a select committee of parliamentarians. Although it may look fair to be tried by one's peers, party political motives may influence people. I would be satisfied to be tried by Members here if they were on the select committee. However, if a political issue was involved or something which would be advantageous to my party which had the majority in the House at the time, Members might be under pressure to suspend or fine a particular person because it would benefit them. The same may apply to members of other parties. I know the Deputies well as individuals and I would be prepared to try them in a court of law, but in the public arena of Irish politics other pressures are brought to bear on people. Irrespective of what a person might want to do, there could be party considerations coming up to an election, perhaps in constituencies with marginal seats.

Mr. Connolly

Or a tight vote in the House.

Mr. McCreevy

There could be a number of reasons for acting in a way where natural justice would not apply. In an ordinary court of law, one can appeal to a higher court in the land. Since we set the rules, this would not be possible here, notwithstanding the decision in re the Haughey case with which we became familiar some months ago.

The section goes far enough since it is a select committee of the House and given the caveats which I have spoke about in relation to select committees and party political considerations. It would be enough for the section to do what is referred to in subsection (2) (a), (b) and (c), to take note of the report, censor or suspend the Member from the service of the House. I believe most Members agreed that subsection (2) (d) goes too far by withholding a person's salary as the electorate in that person's constituency will decide their fate. The evidence of the alleged wrongdoing will be before them and the report will have been laid before the House. It would not compromise the principle of the Bill to leave the powers, which are tough enough, as they are and to remove subsection (2) (d). I ask the Minister to consider that.

Ms E. Fitzgerald

Deputy Connolly was right when he said it was unlikely that Irish parliamentarians would get into the type of mess we have seen across the water with cash for questions. It is equally unlikely that there will be a situation where the powers under subsection (2) (d) will be invoked. However, we need some sanctions to ensure that contraventions of the Bill do not take place and I am sure that when the Bill is enacted, Members will conform. If there are minor sins of omission, the select committee will deal with them accordingly and note them.

Section 27 (1) states: "that such action or actions . . . as may be specified in the resolution and is or are reasonable in all the circumstances". That means there is no way the select committee is legally empowered to take action or to recommend action to the House which is not reasonable with regard to the circumstances. For reasons of political malice, for example, it would not be within the power of the select committee, as the Bill is drafted, to recommend to the House actions which were not warranted by reference to the nature of the report.

Earlier in the Bill we saw how reports of a select committee must determine whether an action, a contravention, was negligent, inadvertent or deliberate. The category of breach of the Bill will already be an integral part of the report. Section 27 (1) ensures that the committee will be legally bound to have regard to the nature of the breach of the Act before it recommends a particular form of penalty. I envisage that only in the most difficult and gross breaches, the committee would contemplate considering suspension without pay. It is important that sanctions are available to ensure compliance with the Bill.

Acting Chairman

I do not wish to curtail the debate on this important section, but I appeal to Members not to be repetitive in their contributions.

Mr. N. Ahern

Deputy McCreevy covered most of the points I wanted to make. Behaviour was ruled by common sense until now, but because it is not sufficient, legislation is being introduced. The Minister mentioned that the maximum sanction is 30 days. Is that included in this Bill or is it the present rule of the House? At present, one can be suspended for three or four days for being obstreperous during the Order of Business. However, if one is caught concealing one's interest in an important matter, the sanction taken against the Member would need to be considerable to be consistent with the earlier punishment. I am nervous about leaving it to common sense because we could all have to dance to a politically correct gallery at some stage, depending on the type of issue which could arise. We should set down clear guidelines. Deputy Nealon said the first few cases might set a precedent and it should be established that the maximum sanction will be a cut in pay for 30 days. The committee should set down guidelines, rather than leaving it to the first case which might be harsh for political reasons.

Acting Chairman

Can a Member be sanctioned without giving him the opportunity to defend himself?

Ms E. Fitzgerald

This would apply after a full hearing in line with the principles of natural justice and with the entitlement of the Member to put their own side of the story. Deputy Ahern made a fair point about guidelines. Perhaps on Report Stage we could envisage a role for the relevant clerks to offer guidance to the select committees because they have enormous experience and wisdom in this area. That might be appropriate if the Members feel the select committees would like such guidance to be available to them.

Mr. Connolly

I am concerned about these committees. If the Government has a majority of one, that party or parties will be under great pressure. I have known Members for a long time, but many will be casualties in the next election. New people will then take over and they may view the situation differently. This could be serious for a Member who might be suspended prior to a local election, a European election or a general election. This is a political way of life and I am concerned about its effect on Members. I hope I do not offend anyone by saying this, but people in good employment should be careful before becoming involved in politics.

Mr. Penrose

The Bill will warrant the imposition of a sanction or suspension without pay, which is the more draconian measure in subsection 2 (d). This is a new concept and we do not have standards on which to base the determination. In tort law, which was set up in the 1930s, one has the standard of a reasonable person and it is easy to operate because it is based on common law. In this case Members are afraid it is operating in a vacuum. Legislation should, where possible, sepcify the circumstances. I tabled an amendment to the Occupiers' Liability Bill, 1994, and it was accepted by the Minister. Standards must be incorporated in legislation so that people know if they breach them they will be named in the House or suspended without pay. Members are trying to achieve such certainly in this section.

Acting Chairman

We have spent a long time on this section, but it is important.

Ms E. Fitzgerald

As I already said in response to Deputy Ahern, I am willing to consider guidelines. I recognise Members' concerns and, perhaps, the clerks could help us in this area because they have enormous experience, having worked on the Committee on Procedure and Privileges. The Ceann Comhairle and the Cathaoirleach chaired the respective Committees on Procedure and Privileges. I will look at this again because I recognise there is a genuine need to outline the circumstances we already cover and which we are expected to operate in a reasonable way. A committee would be in breach of this if it did not operate the provisions of this Bill in a reasonable way. Adverse publicity would be considered adequate in most cases. We will provide an open range depending on the gravity of the offence, but we will look at the guidelines.

Mr. McCreevy

As Deputies Penrose, Connolly and others said, the subjectivity and party considerations which must be applied are causing problems. We must recognise that it is not like a normal court of law. Under subsection (1), if the committee decided "for political malice", to go down this road, to whom or to what body does the Member appeal?

Ms E. Fitzgerald

The House is legally empowered to take only what action is reasonable in all the circumstances; the committee is also bound by that. If we look at what would probably be an analogous provision applying to the Commitee on Procedure and Privileges which is also composed of politicians, a number of contentious issues have gone to the Committee on Procedure and Privileges over the years, but when they have been discussed in committee, away from the heat of the Dáil Chamber, Members know the experience has been that common sense has been applied in judging any particular question of breach of privilege and in deciding what sanctions the committee would impose.

Mr. McCreevy

That is not the answer to the question. When a person appears before an ordinary court and something like that happens you can appeal to higher courts. To whom can you appeal in this situation?

Ms E. Fitzgerald

In any case where the committee had acted outside its powers under the Act, it would be open to any Member to seek a judicial review of a particular decision.

Mr. McCreevy

That is the point I made earlier. In such a case the only right a Member would have involves incurring further expense by going to court, which is not acceptable, because of the risk of further attendant bad publicity. I recognise that there must be some penalties if we are to go ahead with this Bill. I have no problem with that, but we should abandon the monetary aspect. The other censures, the suspension, the bad publicity and the fact that the electorate will finally determine that Member's fate, are enough. If the Minister could give me a good reason for imposing a monetary penalty as well, I might buy it, but I have not heard one.

Ms E. Fitzgerald

Deputy Ahern mentioned suspension for bad behaviour on the Order of Business. We are familiar with the situation where a Member can become a local hero by being suspended and, therefore, in this case, suspension must be seen as a sanction, not a reward, for this behaviour. We have provided for a fine to underline that aspect of it but I would see it being used only in the gravest circumstances. Members have expressed fears about finding themselves inadvertently in contravention of the Act. No Member who complies with the provisions of the Act or makes an honest effort to comply with its provisions is likely to face any of these sanctions or disciplines. When a Member is found to have inadvertently contravened the Act, that is the end of the matter and we provide for that in the Bill.

Mr. McCreevy

I hope the Minister always remains as innocent as she is today, if she feels that all Members, subject to party whips and political considerations, will at all times in the run-up to electoral contest express their judgments of Members in such an open and above board fashion. I am long enough in this House to know otherwise. If certain Members, maybe one or two Members who are now retired, had come before a committee such as this I am pretty certain that, irrespective of what proof they offered, if the majority of the committee was of a different political persuasion the decision would have gone against them. I am sure Deputy Connolly who is here longer that I am, agrees.

Acting Chairman

I thought you had great faith in this committee.

Mr. McCreevy

I am not referring to this select committee but the Minister does not appear to remember that other Members of this House would not have got as fair a crack of the whip as myself, maybe, Deputy Crean and others might before the select committee. The Minister should consider deleting section 27 (2) (d), the monetary penalty as the other sanctions are enough. It is not an important matter of principle. If it is not dropped I will be forced to call a vote on this section. The Minister should reconsider this provision on Report Stage.

Mr. Connolly

If an employee of a company is suspended it is on full pay until proven guilty. The machinery is all set up to do that. I am extremely concerned about this, because I have been a Member of this House for a long time now. I was one of the lucky ones I suppose. There was a time here when it would have been as Deputy McCreevy says. Three or four Members or retired Members here would have fallen into that category and might not have fared too well. I accept the Minister in good faith, but I have no belief in good faith any more.

Acting Chairman

You are losing the faith.

Mr. Connolly

No, that is the way it is. When I came in here first, I would see the situation one way, but afterwards I would be told that it was changed, that the scenario was now different. The main point we are putting forward here, Chairman, is that this is a very serious political issue; a Government may be depending on only one Member for a majority and it is a very serious situation for the Government of the day if that Member is taken out.

Mr. Cullen

Deputy Connolly made the essential point I had intended to make about Members being innocent until proven guilty and about natural justice, particularly in regard to people's income. People are never suspended in the first instance without pay. It is normal practice that where such a situation arises and where a sanction is to be brought against a Member, that element is not put up as a first option. The penalties contained within the section are sufficient not to warrant the ultimate sanction contained in 2 (d) of, in the first instance suspending the Member, and stopping the person's income.

Deputy Connolly is right, we all live in a political world. I accept the Minister's opinion that no real damage is done in a perfect scenario, in a calm, serene situation, where there are no secondary agendas in operation, but in the type of adversarial system we operate, the chances of abusing and using this section to certain political ends exist and we must guard against that. We must be particularly careful in the exercise of this provision. I dislike the draconian elements contained within this particular section of the Bill, particularly paragraph (d). The Minister should delete it; to do so would not in any way diminish what she is trying to achieve with the legislation. We all support the broad thrust of the Bill, but that particular section should be withdrawn. If she did so she would be doing the Bill a service.

Ms E. Fitzgerald

Deputy Cullen might have slightly misunderstood section 27 because it comes into play only after a full hearing. It is not about suspending somebody or engaging any penalties in advance of a conclusion. Secondly, the full report will be available before the House and will be published. Where the conclusions of the report were not justified by the facts I imagine that the political downside would fall on the committee which had drawn up conclusions totally at variance with the facts. The publicity given to the report will be a good check to ensure fair play, which is all I would expect of a committee of Members of the House.

We can all distinguish between political charges in the House in the heat of the moment and an investigation by a committee. We have laid down that the procedures of the committee will ensure natural justice for any person involved. Equally, if the public can see that what is being sought by way of sanctions is at variance with the findings of the committee, the breach of the Act and the facts of the case, that will rebound enormously on the committee. That provides reasonable checks and balances.

It is important to have a range of penalties. In a case of gross abuse — which, I hope and expect will be hypothetical — it is important for the committee to have a penalty with teeth but I envisage that that would not be invoked. I expect — and I am sure the Members expect — that Members of the House, as people representing the public, would be in compliance with the Bill in all cases.

Mr. Cullen

I understand what the section is purporting to do, but the problem is that it is subjective. The ultimate arbiter in all this, as the Minister said in answer to Deputy McCreevy, could potentially be the electorate. In that case, balance can be a long way off for someone who still believes that they are not guilty, even though they have been found so by the committee in its wisdom and for whatever reason. In that context the ultimate financial sanction should not be included because the attendant publicity is sufficient, given that the electorate is the ultimate arbiters.

Mr. Creed

This is my first time attending this committee and addressing this Bill so I may not be as familiar with it as I should. I am largely in agreement with the case made to delete the section, but not from sympathy for the financial predicament in which it would place Deputies. As a society we provide a safety net through the welfare system, and if it is good enough for those on social welfare it should be good enough for others. There is sufficient provision in the legislation prior to subsection 2 (d) to censure politicians in a meaningful way through the various options available prior to that provision. I am not convinced by the argument that it would leave people in some sort of financial limbo without an income. The ultimate sanction for politicians is that their standing would be reduced in the eyes of the public. That is adequately dealt with in the Bill prior to subsection 2(d).

I understand that the Minister gave a commitment to look at this for Report Stage.

Mr. Connolly

There is a lot of goodwill with regard to the Bill in a general context. I am mainly concerned with the protection of Members. As far as we are concerned, if you delete subsection 2 (d) we would agree to the section. To be fair, all the Members have made a good argument on that.

Ms E. Fitzgerald

As I have already said, I will again look at the guidelines issue raised by Members.

Question put.

The Select Committee divided: Tá, 12; Níl, 8.

Tá
Broughan, Tommy.	McCormack, Pádraic.
connaughton, Paul.	McDowell, Derek.
Connor, John.	Nealon, Ted.
Creed, Michael.	Penrose, William.
Fitzgerald, Eithne.	Ring, Michael.
Kenny, Sean.	Ryan, John.

Níl
Ahern, Michael.	Lawlor, Liam.
Ahern, Noel.	McCreevy, Charlie.
Connolly, Ger.	O'Donoghue, John.
Cullen, Martin.	Wallace, Dan.

Amendment declared carried.