Amendments Nos. 32 to 37, inclusive, are related and may be discussed together. Is that agreed? Agreed.
SECTION 6.
I move amendment No. 32:
In page 9, line 20, to delete paragraph (c) and substitute the following:
"(c) The Secretary to the President,".
We propose an independent commission. The Minister was upset when I spoke about this on Second Stage, although I used diplomatic language. This amendment removes any hint that the commission is anything less than fully independent of the Minister for the Environment. We have heard much talk about public perception and the need for everything to be seen to be squeaky clean and politically correct. In view of the Minister's commitment to such ideals and standards, he will have no difficulty accepting the amendments appointing public servants, who are non-political, to the commission.
Amendment No. 34 appoints the Director General of the Central Statistics Office or his nominee to the Boundaries Commission and this will enhance it. The Central Statistics Office is required by the legislation to work closely with the commissioner and provide information. Appointing someone of the ability of the Director General or his nominee would enhance the work of the commission and assist it. I ask the Minister to accept some or all of these amendments, to strengthen the independence and expertise of the commission.
I am tempted to say no. There is no merit in the proposal because the people already suggested are eminently suitable, such as a judge of the High Court or Supreme Court nominated by the Chief Justice, the Ombudsman and the Secretary of the Department of the Environment because that Department contains the franchise section and consequently has a huge volume of expertise. The Secretary is an independent public office holder not bound by the influence of the Minister or the Government, no more than the Director of the Central Statistics Office would be. Why should the Secretary of the Department of the Environment be any more amenable to pressure than the Director of the Central Statistics Office——
He must work with the Minister on a daily basis.
——or the secretary to the President who could in future be a highly political person? The people named are office holders who are right for the job. I do not see any merit in appointing someone like the Comptroller and Auditor General whose work is unconnected with constituency revision or the Director General of the CSO. Any data or support can be provided to the commission. It is a matter of individual expertise which we have got right. I am not persuaded to move from the proposition made in the Bill which has stood the test of time and has been supported by successive Governments.
The Minister said the people I proposed have no specific expertise, especially the secretary to the President.
They are no more non-political than the Secretary of my Department. Why should he be cast as a political puppet subject to political pressure? That is an unfair characterisation of a distinguished office holder, whoever he or she may be. We should not personalise matters. The franchise section is traditionally where these matters are dealt with in the Department of the Environment, so including the Secretary of the Department lends continuity to the process. I am not arguing from a political perspective because I do not know who will be Minister for the Environment when the next constituency revision takes place.
I am not arguing from a political perspective either.
Neither of us is adopting a political stance. On the basis of continuity, expertise and doing the job efficiently and effectively, the perspective of the Secretary of the Department of the Environment is important to these deliberations. When the expertise the others bring is considered, whether they be the Ombudsman or a judge of High Court or Supreme Court——
What expertise has the Ombudsman over and above the Comptroller and Auditor General or the Director General of the Central Statistics Office?
The Ombudsman is the national referee of impartiality. We must be seen to be impartial in this and he is, therefore, a useful and appropriate person to have. The Director of the Central Statistics Office is a gatherer of data.
He is also seen, specifically in law, as someone who is completely independent in the performance of his function. He is an office holder.
So is the chairman of An Bord Pleanála or the Environmental Protection Agency.
They have even less relevance to the work of the commission.
They have no more relevance than the Director General of the Central Statistics Office.
That is probably the weakest argument put forward by the Minister.
The Central Statistics Office gathers data. What else does it do?
It gathers data and also has an expertise in interpreting it and using it, more so than the Ombudsman or the Clerk of the Dáil or Seanad. One characteristic about the people I propose is that they are public servants who are seen to be and must be impartial and are excluded from the political process.
Or political direction.
They are public servants rather than civil servants. The Secretary of the Department of the Environment, whoever he or she may be — I do not want this personalised because we are talking about the future——
The current incumbent is leaving.
I do not want this to be seen as a reflection on the way he performed his duties in the past because he is an honourable and decent man of integrity.
If we are going to the trouble of setting the commission up on a statutory basis, for reasons of public perception and others as well, one, some or all the people I propose would be seen to fulfil the same criteria as any proposed by the Minister with the addition that the Director General of the Central Statistics Office would have an expertise none of the others have. This is similar to a High Court or Supreme Court judge who would have constitutional expertise, which is why they are included. I do not see why the Ombudsman is. The Minister has said it is because of his impartiality. He is in the same category as the Director of the Central Statistics Office and the Comptroller and Auditor General, who is also independent and has in the past criticised all sectors. The job of the Secretary of the Department of the Environment is now on a seven year contract and it would be reasonable to assume that a future Minister might not reappoint a secretary because they would not do his bidding on the commission. It is the only office which is not politically independent.
The Secretary may need to keep the Minister sweet. I have always felt that the Department of the Environment has a disproportionate interest in the division of constituencies because it is the franchise section which provides the alternative maps, sections and new changes. I suspect the franchise section has a huge influence on the outcome of revisions.
Someone must do it. It is an argument which occasionally annoys me that the only people not trusted in Ireland are politicians and that, if they are involved, someone independent must be found.
I have accepted a previous amendment tabled by Deputy Dempsey making it explicit that each member of the commission shall be independent in exercising his or her functions under this Bill. There will be a legal imperative for the person to be independent. There must then be a practical balance of who can do the job and the secretary of the Department of the Environment is a useful person to have. An argument can always be made for others but the grouping provided for is good, it knows the requirements and the practical nature of politics and can make a reasonable attempt at doing the job well. I do not see what additional members would add.
As for the secretary to the President, the President is constitutionally required to be above politics. If the President's secretary was involved in drawing up constituencies this would politicise the office. The Ombudsman is required to be independent. He is seen as the arbiter of fair play and the advocate of the citizen's rights. This provision is an appropriate mix and I ask Deputy Dempsey not to labour the point.
If there was a legal breach of the requirement for independence by any of the five members of the commission, the other four would take whatever steps were necessary to address the problem.
This was a commitment in the programme for Government between Fianna Fáil and Labour. I do not think the Bill goes far enough. The commission should be set up and the franchise section of the Minister's Department should be a part of that commission. I do not know what other functions that section deals with.
Electoral law.
In that case it might not be practical. Would the Minister accept that the director general of the Central Statistics Office is someone who may——
As the sixth member?
Yes.
I am not happy that the Secretary of the Department of the Environment is on the commission. It is not correct that such a person should be on the commission. The Secretary could make a relevant input as a witness for the commission without being a member. He has much expertise available to him but it is not correct for someone in that office to be a member of the commission.
I have no fixed view on these amendments. I have argued on the basis of what I think is a good position and I want whatever we enact to be practical. We require expertise.
The deciding aspect and the availability of the expertise are two different matters.
The decisions will be made by the commission of five. People must sit down and map out constituencies. The franchise section of my Department must provide the necessary support, so it is useful to have the Secretary of the Department on the commission.
I have accepted an amendment which clarifies the position and requires each member of the commission to be independent. It would be unlawful for a member to be partial or for anyone to pressurise a member to be so. I am interested in hearing any argument which suggests a downside to having the Secretary of the Department on the commission. I am arguing for his inclusion on a practical basis.
I accept that the Department of the Environment will have the factual matrix available to it on which the commission will base its decisions. I am not disparaging its expertise or the incumbent. However, I would be happier if the commission were in a similar position to the Director of Public Prosecutions, namely, that representations must be made clearly and openly. The members should be under an obligation not to hear any representations other than those made through a formal process. There should be no question of anyone leaning on a commission member and saying that they would like to know X or Y. A case should only be made to the entire commission sitting together.
There is legislative precedent for this in the DPP's office. One cannot make representations to the DPP — he is bound to disregard them. It should be an offence to make representations other than through a formal process set down by the commission. Each commissioner should be obliged to disregard any unofficial representations and draw them to the attention of the other members. This will make it clear that the deliberations of the commission will be entirely independent.
I support that point.
The new section 7 is very important. It gives statutory recognition to something which has existed on an ad hoc basis. The membership of the commission is also important. I would like to see the Secretary of the Department of the Environment remain on the commission. The director general of the CSO collects population data——
What about the director general of the Ordnance Survey?
Why not?
The only reason that the head of the CSO should be on the commission is that he or she can explain demographic changes. I do not care how many members sit on the commission as long as it is independent. There will be a legal imperative for it to be impartial. I do not know how commissions work. The reason there are five members is to avoid a stalemate if there is a vote. I am sure that the nominee of the Supreme or High Court will have the Chair. Legal people are great purveyors of wisdom. That is their job.
It is not often one gets them to do two jobs for the price of one.
I will not answer that. I would be in favour of including the director general of the CSO. As this is initiated in the franchise section of the Department of the Environment, the Secretary should also be a member. I always thought one had to make a written submission——
That is now spelt out.
Deputy McDowell's concerns are being addressed.
There are two issues that I have been asked to reconsider. The first concerns the position of the Secretary of the Department of Environment and the second is the position of the director general of the Central Statistics Office. I would like an odd number of members on the commission rather than a double voting chairman. I will reflect further on both points but I am not yet convinced by the arguments put forward.
The Secretary of the Department will get to the Minister before he returns to the Select Committee.
The point made by Deputy McDowell is very worthwhile. This concerns more than the Secretary of the Department of the Environment. I have heard discussions I considered inappropriate involving members of commissions. It should not be allowed. Deputy McDowell is absolutely right. An amendment on Report Stage should be considered.
This refers to section 9 regarding the obligation to invite submissions, etc.
I am not pressing any particular formulation here, but in the prosecution of offences legislation of 1974 there is a specific precedent for a proposition that informal approaches must be ruled out. It is an offence to persist with them and they must be disregarded. There is a procedure whereby——
If it arises, a member of the commission would report back to the rest of the commission.
Yes. There is also a formal procedure where they only take submissions from the public.
The problem with the Secretary of the Department is the other side of the same coin because the Department can make a submission while having a person on the commission. Of all Government Departments the Department of Environment would have the most direct interest in making a submission to the commission because of the legalities of electoral law administration.
I disagree. The Department has never made a submission as far as I am aware.
They do not have to.
We have the answer.
The Minister will consider the point made by Deputy McDowell with a view to introducing an amendment on Report Stage.
I will have an official examine the relevance to section 9 of the point raised by Deputy Dempsey.
Amendment, by leave, withdrawn.
Amendments Nos. 33 and 34 not moved.
Section 6 agreed to.
The proposal is to resume discussion of the Bill at 9.30 a.m. on next Thursday and to sit until 5.00 p.m. If Committee Stage is not concluded by then, we will resume discussion on Wednesday 26 March at 9.30 a.m.
It is important that this debate be in public.
I hope the Minister is not being filibustered.
It is very productive.
The Select Committee adjourned at 4.40 p.m.