Amendments Nos. 1 and 3 are related and may be discussed together, by agreement.
National Treasury Management Agency (Amendment) Bill, 2000: Committee Stage.
Section 1 agreed to.
SECTION 2.
I move amendment No. 1:
In page 5, subsection (1), between lines 35 and 36, to insert the following definition:
" 'a claim of a class' means any claim based on similar circumstances pursued by either a group or by individuals;".
In section 6 "delegated claim" means a claim, or a claim of a class, the management of which stands delegated to the agency. I do not think the phrase "a claim of a class" has a universal meaning. It should be defined in the definitions section and the amendment seeks to define it. On the one hand it could mean a group of people who would collectively pursue a class action. We have heard of class actions in the American jurisdiction. I understand major class actions are being pursued in individual states of the United States against the tobacco industry in those states. A claim of a class could also be something like the claims being pursued by members of the Defence Forces. While they are all claims of the same type and where the basis of the claims is damage attributed to a common source, they are being pursued individually. The expression "a claim of a class" needs to be defined. The amendment seeks to draw the Minister of State's attention to this fact.
Amendment No. 1 proposes to define a claim of a class. My advice is that this is not necessary. Claim and counterclaim are already defined in sections 6 and 7. A class of claim, for example army deafness or assault claims, is easily understood. It was considered necessary to define a claim and a counterclaim so that there would be clarity about the type of claim, and hence counterclaim, which could be managed by the State claims agency.
Amendment No. 3 would exclude from the definition of a claim in section 7(1) any class of claim which might be prescribed by the Minister for Finance. I am satisfied that there are sufficient provisions already in the Bill to meet the purpose of this amendment.
Derogation orders to be made by the Government under section 9(1) will cover claims or classes of claims. Such orders can be revoked or amended to remove certain classes of claims or, if necessary, to put them in. This is the correct way to deal with the issue rather than giving the Minister the power to prescribe that a class of claim is to be excluded. In those circumstances I can not accept the amendments.
When a Bill is read by an average educated individual its meaning should be clear. The understanding of a Bill should not be confined to members of a druidic group who need reference books beside them to understand it. If the Minister of State meant a class of claim, which is what he said, why does the Bill use the term "a claim of a class"? A class of claim is easily understood but that is not what the Bill says. Are class actions covered by the Bill and is the Minister of State sure they are covered?
I raised this issue myself and the assurance I was given is contained in the note I have read. I understand the point Deputy Noonan made when he referred to the tobacco industry in the United States. Something similar could happen here. However, that position is covered adequately by the Bill and it is not necessary to make this amendment.
That is acceptable then.
Amendment, by leave, withdrawn.
Section 2 agreed to.
Sections 3 to 5, inclusive, agreed to.
SECTION 6.
Question proposed: "That section 6 stand part of the Bill".
The term "delegated claim" defines the type of claim which can be managed by the agency acting as the claims agency. A delegated claim is a claim, or a claim of a class, the management of which stands delegated to the agency. As the Minister has defined a claim of a class this does not include class actions. Will the Minister undertake to accept an amendment on Report Stage to add class actions to this section?
I understand Deputy Noonan's point. I will return to this matter on Report Stage if it is necessary to define the term more clearly.
Question put and agreed to.
SECTION 7.
Amendments Nos. 2 and 3 not moved.
Amendment No. 4 is consequential on amendment No. 31 and they may be discussed together, by agreement.
I move amendment No. 4:
In page 8, subsection (1), to delete lines 36 and 37 and substitute the following:
"(c) a body specified in the Schedule or, if appropriate, the head of such a body,”.
Although Deputy McDowell has not moved amendments Nos. 2 and 3 which were tabled by him, the point he makes in those amendments has some resonance and I will return to it on Report Stage.
Amendment No. 31 proposes to insert a new Schedule which is designed to do two things. The first is to list the specified bodies rather than have them divided into two parts. The reference to these bodies under the definition of "State authority" in section 7(1) is, accordingly, being amended. The second is to make changes to the designation of certain bodies to accord with their precise legal nomenclature. The purpose of the Schedule is to include certain specified bodies in the definition of "State authority" in section 7.
Currently the Schedule is divided into two parts. The distinction between them is that between bodies which are legal entities, part 1, and those which are not, part 2. In the latter circumstance it is presumed that any proceedings against the body concerned would be taken against the head of that body as defined in section 7(2) of the Bill. This is a difficult distinction to draw. Some of the bodies listed are clearly legal entities, being corporations in sole or perpetual possession of the capacity to sue and be sued. However, the exact legal status of some of the other bodies is not so clear cut. Some have been established by statute and statutory functions have been conferred on them but there is no express statutory provision setting out their status. It is difficult to ensure their correct location as between parts 1 and 2. Hence the amended Schedule simply lists the specified bodies.
Amendment No. 4 is necessary to bring the reference to the Schedule into line with the amended Schedule.
Amendment agreed to.
I move amendment No. 5:
In page 8, lines 41 and 42, to delete "recognised by the Minister for Education and Science,".
This amendment is required to remove unnecessary words in the reference to community and comprehensive schools.
Amendment agreed to.
I move amendment No. 6:
In page 9, subsection (1), line 6, to delete "General, or" and substitute the following:
"General,
(i) a person in respect of whom a Minister of the Government pays, or agrees to pay, the amount (if any) payable in respect of a claim against the person, or”.
By extending the definition of State authority, this amendment would permit the delegation to the agency of claims against persons who have an undertaking from a Minister that the Minister will pay the amount of the claim against those persons. Examples of holders of indemnities would be community and comprehensive schools, which are already included in their own right in the definition of State authority, and cultural institutions such as the National Gallery in relation to works of art which are brought into the State for exhibition. An undertaking or indemnity could also arise in the case of Members of the Dáil and Seanad in respect of personal injury suffered by their secretarial staff.
While the amendment would be unlikely to have a substantial impact on the volume of business of the agency it would leave open the possibility of some extra business being generated.
Amendment agreed to.
Question proposed: "That section 7, as amended, stand part of the Bill."
Paragraph 7(1)(a) excludes matters which would be adjudicated under the Garda compensation tribunal and paragraph 7(1)(c) exempts matters which would be adjudicated under the equivalent procedure for prison officers, the criminal injuries tribunal. I understand the reason for these exclusions but I do not understand the exclusion made in paragraph 7(1)(b). What is the reason for excluding a claim against the Minister etc. by a person assaulted while in the custody of the Garda or a prison officer? Is it a statement to the effect that regardless of circumstances the State will always contest such claims?
In practically every case involving claims in respect of alleged assault by a member of the Garda Síochána or a prison officer - these are by no means routine cases - there are policy and legal considerations to be taken into account and weighed. The advice of the Attorney General's office is required. The view of that office is that claims of this type should not be delegated to a claims agency. That is why this provision is included.
Mr. Noonan Why should an alleged assault by a member of the Defence Forces be delegated to a claims agency when an assault by a prison officer or a member of the Garda Síochána cannot?
I understand it to be on the basis that the most common cases relating to prison officers and gardaí involve the escorting of prisoners. I am not aware of any other reason for their exclusion. This is why the Army is not included.
The Minister is including an alleged assault by a teacher in a comprehensive school.
Yes.
Is that an appropriate matter to delegate?
Yes.
Where is the distinction?
Between that and the Army?
Between that and gardaí and prison officers. An assault by a public servant which leads to an injury claim being made may be delegated in respect of some public servants but not in respect of others.
It was the advice of the Attorney General to specifically provide that cases involving the Garda Síochána and prison officers should not be delegated. His advice was very strong in this regard.
It is a policy rather than a legal matter. The policy of whether one includes or excludes is a matter for the Minister, not the Attorney General.
It is, but the advice given in this regard has been accepted by the Minister.
Is the Attorney General now giving advice on policy issues?
No, but the section was included in the Bill on the advice of the Attorney General for the reasons I stated, that is to say, it was not an appropriate place for claims of this nature to be dealt with.
It is normal on Committee Stage to rely on more than an assertion that it is not an appropriate place. Are there any reasons to support this assertion?
The word "claim" is defined as a claim which is wholly, or in the opinion of the Minister, mainly one for compensation or damages for loss of life or personal injury, or loss of or damage to property. These claims are excluded. There are different types of assaults and I have tried in the Bill to define these so as to make clear what is included.
Section 7(1)(c) states that a State authority means “a person or body specified in Part 1 of the Schedule or the head of a body specified in Part 2 of the Schedule”. What is the reason for this distinction?
I amended this section under my earlier amendment.
Does the Minister of State have a speaking note on section 7(1)(i)?
No. Does the Deputy have a specific question on this subsection?
It is a general catch-all subsection which refers to "any other body that the Minister may prescribe" and excludes companies under the Companies Act. I am not clear what category the Minister of State thinks could be caught by this subsection.
A local authority, health board or VEC.
Question put and agreed to.
NEW SECTION.
I move amendment No. 7:
In page 9, before section 8, to insert the following new section:
"8.-(1) A local authority may opt to be treated as a 'state authority' by a majority of its members voting to be so considered at a specially convened meeting of the authority.
(2) Subsection (1) will come into effect only with the permission of the Minister for the Environment and Local Government.”.
This proposal may be covered by the previous section, on which I did not get clarity. It would be a good idea if the Minister in certain circumstances could refer claims being made against a local authority to the agency. I thought this new section would be required to empower the Minister to do so, but given the Minister of State's explanation on section 7(1)(i) I am not sure it is needed.
This amendment would introduce a discretion for a State body, in this case, a local authority, to be treated as a State authority for the purposes of the State claims agency provisions of this Bill and no other State body would have this preferred position. If such a discretion was introduced for one type of State body questions would arise as to how it could be denied for others. Under the definition of "State authority" in section 7(1)(i), it is open to the Minister to prescribe publicly funded bodies established by statute, such as local authorities, health boards, vocational education committees, etc., as State authorities for the purpose of the State claims agency’s activities. This provision was included with local authorities very much in mind. This provision is sufficient to cover the position of local authorities. I did not regard it as sustainable that local authorities should be given a preferred position as compared with other public bodies, which is why it is done this way. This covers the point raised by the Deputy.
Does the Minister have power under law to direct a local authority to spend money in a particular way when it is already a reserve function of the authority?
The reality is that it would have to be done by agreement with the local authority.
The Minister of State was a member of a local authority and is familiar with the separation between reserve and executive functions. Reserve functions relate to the expenditure of money and only elected members can exercise a reserve function. This catch-all provision in the Bill will allow the Minister to delegate to the claims agency matters which are really the reserve functions of local authorities. I do not understand how he will do that, which is why the second part of my amendment proposes the consent of the local authority should be necessary by a majority vote at a specially convened meeting.
It is purely an enabling provision and does not presume it will happen.
Does the Minister of State understand my point?
I understand the Deputy's point about the reserve functions, but given the way in which the Bill is framed I do not see a situation where there will not be agreement to proceed in a certain way. Why would local authorities not want to work in a certain way?
They might want to handle the claim themselves. The premise on which the Bill is constructed is that a State claims agency would be more effective in handling claims than each individual Department or agency as at present. It will be one way or the other.
The intention is that the NTMA will handle these claims and I hope it will prove a far more effective way of dealing with them.
Under section 7(1)(i) the Minister may delegate claims made on local authorities as claims which the agency may handle.
Absolutely.
That was not clear under the section and I thought an amendment would be necessary. However, the Minister is giving an assurance that it is not necessary. Does the Minister believe that, because the expenditure of money is a reserve function of local authorities, it would be prudent to make provision for that when there must be a majority of the members assenting to the transfer of the claim? It will not work otherwise; it will be bad law. To say it will be all right on the night is not sufficient when dealing with Committee Stage.
There is merit behind the intention of the amendment. I would have expected it would have worked in this manner. Now that the Deputy has raised the point I am not sure if the health boards would be in a similar position. I am prepared to listen to the Deputy. I understand the difference at local authority level and the reserve functions. If there will be conflict and if it will not be possible to do what we want, I will come back to it on Report Stage.
Will the Minister receive legal advice on it between now and Report Stage?
I will.
Amendment, by leave, withdrawn.
I move amendment No. 8:
In page 9, subsection (3), line 36, to delete "level." and substitute the following:
"level after the special circumstances of any claim or a claim of a class have been taken into account by the Agency.
(4) The Government may advise the Agency when, in their opinion, the special circumstances of a claim or a claim of a class should be taken into account.".
Subsection (3) states:
The Agency shall manage delegated claims and counterclaims in such manner as to ensure that the liability of the State authorities in relation to such claims, and the expenses of the Agency in relation to such management, are contained at the lowest achievable level.
I went through a rather traumatic experience at the hands of many of the Minister's colleagues. I was trying to get a set of claims through a compensation tribunal so that the costs could be contained at the lowest achievable level, even though the Hepatitis C Compensation Tribunal was mandated to take all circumstances into account and be quite generous with claims. The Minister is mandating the State agency not only to contain the legal costs at the lowest achievable level but to contain damages at the lowest achievable level. There are certain types of actions where that would place a severe restraint not only on the agency but on the Minister of the day who delegates to the agency. I accept it in the case of legal fees but if the ultimate test of the damages paid by the agency is to be the lowest achievable level it will take everyone in this Administration and the next back to that debate on costs. As a person who was treated most unfairly by many of the Minister's colleagues, I ask if the Minister took those views into account.
The amendment seeks that they would be achieved at the lowest possible level after the circumstances of any claim or claim of a class had been taken into account by the agency. The Government may advise the agency when, in its opinion, the special circumstances of the claim or a claim of a class should be taken into account. Take the recent claim pursued by a mother on behalf of her autistic child. If the State loses the appeal, unwisely taken by the Minister for Education and Science, there will be a claim of a class coming up the line against the Government. This Bill may be law at the time. If the claim of a class by mothers of autistic children has been adjudicated on by the agency, the only criteria it may apply in accordance with this section is to settle at the lowest achievable level. I am not sure that is wise without qualifying the phrase.
Why was it necessary to include that instruction? Normally a claims agency would try to reach the best compromise possible and settle. If it is not settled the matter will go to court. It will be out of the hands of the agency and the Minister will pay what the court decides. The insertion of "the lowest achievable level" is looking at the agency through the eyes of the Minister for Defence in relation to the compensation claims by members of the Defence Forces because of injury to their hearing. They came out on the wrong side of the public relations campaign. In the court of public opinion there was a notion that they were soldiers, hard men, and if their hearing was injured that went with the job. That colloquial wisdom was pushed by the Minister for Defence who won the PR argument in spite of the fact that many soldiers have varying degrees of deafness as a result of their injury and are entitled to damages.
If we take the case of the women affected by hepatitis C or the haemophiliacs dealing with the Lindsay tribunal, or the claim of a class which will be inevitable as a result of the recent case taken by the mother with the autistic child together with the claims that will emanate from the Lefoy Commission that is hearing from those who, as children, were educated and reared at the hands of the State in institutions, at the end of the day when the Attorney General and the Minister were thinking of transferring claims against the State to an agency and decided the NTMA would be appropriate, it was more class actions and claims of a class they had in mind than individual cases and it was sparked primarily by the debate on the hearing injury claims by members of the Defence Forces. That was the issue clogging the Chief State Solicitor's office, which was difficult to cope with, when the previous Attorney General came up with these proposals. There will be many class claims resulting from abuse in orphanages, schools and perhaps even boarding schools, and many actions will result from the successful case taken by the mother of the autistic boy if that case is sustained on appeal. The parents of every autistic child who deem their children did not get a satisfactory education will pursue this. The phrase is extremely unwise because it places a legal obligation on the claims agency to settle at the lowest achievable level. People with that kind of mandate may lack the flexibility to settle such claims with generosity when generosity may be more important than saving the last pound.
I have listened very carefully to and understand the arguments made by the Deputy, but when an assessment is made within the State Claims Agency, even with the phrase in question in the Bill, the compensation to be agreed will depend on the level of severity. The language used in the Bill may seem harsh, but it is inevitable that in settling a claim with the State Claims Agency the points made by the Deputy in terms of hardship will weigh heavily on the outcome and the level of compensation deemed appropriate. The amendment would not add anything to the Bill.
One would hope that any normal humane man or woman would act in the way outlined by the Minister of State but they are being mandated to act in a different way. It would be different if this was one guideline among many on how the agency should deal with claims, but it is the only one.
The Deputy has added a range of issues which will not be dealt with under the Bill. For example, the Minister for Education and Science, Deputy Woods, is establishing a compensation body for child abuse victims. This seems to account for a large part of the argument being made by the Deputy. The amendment would not add anything to the Bill. The approach adopted in the Bill is not the wrong one. It should be indicated that the State is doing in a fair way its duty to the taxpayer who will have to foot the bill. The guideline in the Bill is as it should be.
Amendment put and declared lost.
Amendment No. 9 not moved.
Section 8 agreed to.
SECTION 9.
I move amendment No. 10:
In page 10, subsection (1), lines 31 to 35, to delete paragraph (a) and substitute the following:
"(a) Subject to paragraph (b), the Government may, at the request of a Minister of the Government in whom functions in relation to a State authority are vested, by order delegate to the Agency the management of any claims, or classes of claims, against such an authority.”.
This is a technical amendment designed to improve and make much clearer the wording of the reference to Ministers at whose request the Government may make a delegation order. The paragraph will no longer refer to the relevant Minister of the Government, but to a Minister of the Government in whom functions in relation to a State authority are vested. This will remove doubts that the existing wording might not capture all the bodies covered by the definition of State authority in section 7.
Amendment agreed to.
Section 9, as amended, agreed to.
SECTION 10.
I move amendment No. 11:
In page 13, subsection (3)(b)(ii), line 6, to delete “claim” and substitute “claims”.
This is a minor drafting amendment.
Amendment agreed to.
I move amendment No. 12:
In page 13, subsection (5), line 16, to delete "for" and substitute ", for".
This is also a minor drafting amendment.
Amendment agreed to.
I move amendment No. 13:
In page 13, between lines 19 and 20, to insert the following subsection:
"(6) Any guidelines given by the Attorney General to the Agency under subsection (5) shall be laid before each House of the Oireachtas as soon as may be after they are made and, if a resolution annulling the guidelines is passed by either such House within the next 21 days on which that House has sat after the guidelines have been laid before it, the guidelines shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.”.
Section 10(5) provides that the Attorney General may lay down guidelines. I am commending that these should be laid before the Houses of the Oireachtas.
It is not the practice or appropriate that guidelines be laid before the Houses of the Oireachtas or that the negative laying provision usually used in the case of regulations and orders should apply to them. Embarking on this course, as the amendment proposes, would have within it the risk of interfering with the constitutional role of the Attorney General. In drafting section 10 we took great care to ensure this role was protected. I must, therefore, oppose the amendment.
What will be the strength of the guidelines laid down by the Attorney General? Will they be advisory in nature or have the strength of law?
They will have the strength of law; they will be mandatory.
If they are mandatory, will they not be the equivalent of statutory regulations and should they not be placed before the Houses of the Oireachtas; otherwise the man in the ivory tower will decide the detail of how the State Claims Agency should operate without reference to the elected members?
I do not agree. It is as simple as that. What I outlined speaks for itself. It is clear from the section that we have looked to protect the position of the Attorney General. I do not see him as a man in an ivory tower. The subsection is there for all to see and that is the way it should remain.
He is a man in an ivory tower in the sense that he is not directly accountable to the Dáil——
I am aware of that.
——but he is accountable through the Taoiseach to some degree. If the amendment was accepted, it is the Taoiseach who would bring any mandatory guidelines before the Houses of the Oireachtas.
He is not responsible for the discharge of his legal functions.
Will these just be legal guidelines?
Yes.
The section does not make it clear that these will just be legal guidelines. There could be policy guidelines.
It goes back to subsection (1).
Again, it is not clear from subsection (1) what exactly the nature of the guidelines will be.
The Deputy asked a question and I have given him the answer. They will be laid down in the context of his legal position.
Let us suppose, for example, that he lay downs guidelines on how cases taken by the mothers of autistic children are to be dealt with in the future. It is bad policy.
The Deputy used that case earlier——
Let us say they are deaf soldiers. The point is that it is not possible for an Attorney General to decide between policy and legality in issuing guidelines on how claims should be handled.
It may be a moot point because——
The legal manner in which a claim is handled is policy. It is a policy issue.
His advice is legally based.
This is not about advice; it is about guidelines. The Attorney General can advise anyone in Government who looks for advice, but the Attorney General is not mandated to issue guidelines to agencies. This is a new power we are giving to the Attorney General. Can the Minister of State indicate a precedent where the Attorney General advises anyone other than a Minister of the Government or the Government generally by way of guidelines?
In this case he is handing over his functions to the agency concerned. He will still, however, retain certain functions. I cannot give an example off the top of my head. I will ask my officials if there is such an example; I do not know that there is. It appears that there is not; the Bill is designed in this way to ensure he will not have to be involved in the day-to-day workings of the agency. That is evident.
I do not want to be disobliging, but I have not received a satisfactory answer.
Amendment, by leave, withdrawn.
Section 10, as amended, agreed to.
SECTION 11.
Amendment No. 14 not moved.
I move amendment No. 15:
In page 13, subsection (2), line 38, after "been" to insert "made".
Amendment agreed to.
Question proposed: "That section 11, as amended, stand part of Bill."
Could the Minister give examples of what he has in mind under section 11(1)(a)? What kind of adverse incident would be reported by a Department to the agency? It is obviously some kind of early warning system.
Any incident that the Department thinks might lead to a claim will have to be reported. It is an early warning system, as the Deputy so aptly puts it.
If somebody visited the Department of Justice, Equality and Law Reform and fell down the stairs, that would be notified.
A judgment would be made within the Department as to what would or would not be notifiable. People are charged with responsibility at all kinds of different levels to exercise common sense.
The section does not allow that kind of discretion. It says that a report of any adverse incident should be made to the agency as soon as may be. The only discretion is in the timing of the report. Does the Minister envisage every incident within the remit of any of the wide number of authorities which are designated having to be reported under law as soon as it happens, or as soon as may be after it happens? The section refers to anything at all that may give rise to a claim. Does the Minister think that is practical.
It is prudent. Incidents happen and might not be followed up for two or three years. Some record of the incident should be in place, and some reference to the fact that it happened.
As the section stacks up, as soon as anything occurs within the remit of any of the authorities it must be reported, and we know that all the bodies in the Schedule are all Government Departments, and local authorities and health boards if the Minister so decides. This section provides that the agency must be informed about any adverse incident by one of the State authorities. As well as informing the agency, the State authority must furnish to the agency all information it considers relevant, and any such information that the agency considers relevant. After that, it must preserve as appropriate and furnish evidence to the agency and must permit the incident to be investigated. Is the Minister saying that if a vehicle owned by a Government Department is involved in a crash, the obligation is on the Department to notify the agency forthwith and to preserve the evidence, to box the vehicle and send it, together with any other evidence that is available? It sounds fine if we are dealing with a minor number of incidents, but the Minister told us on Second Stage that thousands of claims are constantly in play against the State. Is this realistic, and to what degree? What kind of bureaucracy is it going to create?
What is the alternative? Is it to have an a la carte menu?
The alternative is to wait until a claim is made.
A report does not have to be a tome. It can be just a note.
It would be just a note if paragraph (a) were not supported by paragraphs (b) and (c). However, it is more than a note. It is a full portfolio, the full case.
It is.
This has to be provided before there is any indication that anyone wants to claim.
One must use common sense here. Somebody could claim to have fallen downstairs, but there may be no witnesses. Obviously one has to try to establish the facts. There may be very little evidence that could contribute to a case other than that the person has claimed that he or she fell. That could be notified. In terms of detailing serious information, one must do the best one can. One can fulfil paragraphs (b) and (c) if there is other information pertaining at the time, but there may not be. However, one cannot differentiate between cases where there is more obvious information which can be made available and cases where the facts are less clear.
The Deputy may be right in saying that some claims may not materialise, but I cannot differentiate within the Bill which claims may or may not materialise. Reporting must relate to everything, and I hope that is what will happen.
It is the Minister's Bill, and the thinking behind the Bill was that there would be a claims agency to simplify the manner in which claims against the State, in its widest definition, are handled. However, if the Minister constructs a Bill which makes handling those claims even more complicated by imposing obligations on all State authorities to make the kinds of reports to a central agency that they would not have been required to make before, even to their own legal departments, it may frustrate its intent. Rather than simplifying matters, section 11 may make them even more complicated.
I certainly hope that will not be the outcome.
Under section 11, there will be a section in every Department which will have responsibility for ensuring that if anything happens that could lead to a claim anywhere under the Department's remit, it will be reported, the paperwork done and the evidence procured and forwarded to the agency, and the Department must be assured that the incident may be examined by the agency and any witnesses thereto interviewed by it.
The same procedure would apply in relation to an insurance company. I received a form within the past two weeks about an incident in which I was purported to be involved, about which I had no knowledge, and requested to furnish details. I rang the insurance company to inform them that I had no knowledge of what was being claimed to have happened. However, the process required that I be asked to furnish information. The point was that even though it was not known whether there was a claim, the process required that the information be forwarded. There is no difference here. It is prudent to provide some record of something that happened at the time of the incident and not rely on hindsight two or three years down the road.
Is there a statutory obligation——
It is outlined. The provisions of the Bill oblige that Department do that. If it does not, it will have to answer for not following the procedures set out in law.
The Minister knows how things work in the Civil Service. This is a section in respect of which there are no penalties, but it would certainly have an adverse effect on somebody's career; the prudent civil servant or Department will, therefore, set up a section to deal with it. What was supposed be a Bill to take the complications out of State claims and settle them all at the lowest possible cost will give rise to costs all over the shop. I will leave it there because I am getting nowhere. We are having an argument, heat is being generated, but no light is being cast on this.
If there were hundreds of claims in any one Department that would happen, but that has not been the experience. The spread is quite wide.
Question put and agreed to.
SECTION 12.
I move amendment No. 16:
In page 14, between lines 4 and 5, to insert the following subsection:
"(4) The Minister shall only appoint persons to be a member of the Policy Committee, who have acquired substantial experience at a senior level in any of the following areas:
(a) insurance or risk management,
(b) the law,
(c) actuarial practice,
(d) accountancy and auditing,
(e) the Civil Service of the Government or the Civil Service of the State,
(f) trade union representation, and
(g) consumer rights representation.".
The Minister for Finance claimed, when he was setting up a similar type of body under the pension fund legislation, that he was breaking with precedent and ensuring that only those who had a competence in the area where they were giving advice could be appointed in future to a position such as commissioner in charge of pension funds. If these people are to be advising on State claims with a view to bringing them in at the lowest possible level, the precedent established by the senior Minister should be followed here.
We should specify that those on the advisory committee would be persons who would have competence in insurance and risk management, the law, actuarial practice, accountancy and auditing. I have no objection to civil servants, trade union people or consumer representatives. What holds good in one Bill being sponsored by the Minister should hold good in the next Bill being sponsored by the Minister.
I am aware of the point which has been well made by the Deputy. We could sit here and argue about the Bill but I do not want to do that. As far as I am aware the analogy in the Bill is not necessarily the same. That said, the Deputy's point is valid. I will look at it positively and come back to it on Report Stage. I would like to embody it in the legislation. It is good enough in one area although for a different reason. The Deputy's point is valid in the context.
If the Minister of State is not fully convinced he should have a look at the record of the previous Committee Stage of the other Bill as his senior colleague claimed he had seen the light as a result of the O'Flaherty nomination, that he was a new man and all legislation sponsored by him would have these kinds of——
Proofings.
——sections in the future.
I have not read it but I will take the Deputy's word for it.
Amendment, by leave, withdrawn.
Section 12 agreed to.
I wish to signal the possibility of a Report Stage amendment to section 13.
Sections 13 to 15, inclusive, agreed to.
SECTION 16.
We come to amendment No. 17. Amendment No. 18 is an alternative and amendment No. 25 is related. Amendments Nos. 17, 18 and 25 may be discussed together by agreement.
I move amendment No. 17:
In page 14, subsection (1), to delete lines 28 to 42 and substitute the following:
"(i) the amount of any costs, charges and expenses incurred from time to time by the Agency in respect of the services of professional and other expert advisers in relation to a delegated claim and, if appropriate, a counterclaim,
(ii) the amount of any award or settlement to be paid to a claimant in respect of a delegated claim,
(iii) the amount of any costs, charges and expenses of a claimant in relation to a delegated claim as agreed by the parties, or in default of agreement, as taxed or ascertained in accordance with rules of court, and
(iv) the amount of interest (if any) payable on any of the amounts referred to in subparagraphs (i), (ii) and (iii).
(b) A payment under paragraph (a) may be in respect of any amount referred to in subparagraph (i), (ii), (iii) or (iv) of that paragraph or part thereof.”.
The purpose of amendment No. 17 is twofold. First, it corrects minor drafting errors in subparagraphs (i) to (iii). Second, it introduces a fourth subparagraph which will allow the agency to pay interest, if it arises, on amounts payable by it under paragraphs (i) and (iii), a provision I think we would welcome. It draws on amendment No. 18, tabled by Deputy McDowell, the intent of which I am happy to accept. Amendment No. 25 is a technical amendment and more accurately reflects a reference to moneys deposited with the Central Bank.
Amendment agreed to.
Amendment No. 18 not moved.
I move amendment No. 19:
In page 15, subsection (3), line 6, to delete "in the form of advances from" and substitute "by".
This is a technical amendment and more accurately reflects the reference to Exchequer moneys deposited with the Central Bank.
Amendment agreed to.
Amendments Nos. 20 and 21 are related and may be discussed together by agreement.
I move amendment No. 20:
In page 15, subsection (4), line 8, to delete "subsection (3)” and substitute “subsection (2) or (3)”.
This is a technical amendment to correct a drafting error.
As regards amendment No. 21, the payments which the agency will make under subsection (1) will be funded from advances it will receive from the Post Office Savings Bank fund. All payments which the agency receives from State authorities by way of recoupment should, therefore, go back into that fund and not any other fund. Therefore, I cannot accept amendment No. 21.
I put down the amendment to remind me to inquire why the payments will be made out of the Post Office Savings Bank fund, other than the fact the NTMA runs the fund. Is there any other reason or is simply that it is handy?
That is about it.
That is probably as good a reason as any.
Amendment agreed to.
Amendment No. 21 not moved.
Amendments Nos. 22, 23 and 24 are cognate and may be discussed together by agreement.
I move amendment No. 22:
In page 15, subsection (5)(a), line 14, before “claim” to insert “delegated”.
These amendments are to correct minor drafting errors in the reference to claims.
Amendment agreed to.
I move amendment No. 23:
In page 15, subsection (5)(b) line 20, to delete “claim” and substitute “delegated claim concerned”.
Amendment agreed to.
I move amendment No. 24:
In page 15, subsection (5)(b), line 24, to delete “claim” and substitute “delegated claim concerned”.
Amendment agreed to.
I move amendment No. 25:
In page 15, subsection (6), line 33, to delete "subparagraphs (i), (ii) and (iii)” and substitute “subparagraphs (i), (ii), (iii) and (iv)”.
Amendment agreed to.
I move amendment No. 26:
In page 15, between lines 37 and 38, to insert the following subsections:
"(8) If the Government makes an order under section 9(1) in relation to a claim or a class of claims, the power of the Minister under subsection (7) may be exercised by the Agency in relation to the claim or class of claims concerned.
(9) The Minister may give directions or guidelines to the Agency in relation to the exercise by it of the power conferred on it by subsection (8), and the Agency shall comply with any such directions and exercise that power in accordance with any such guidelines.”.
This amendment is designed to improve the operational arrangements for the use by the agency of advances from the Post Office Savings Bank fund for claims management purposes, the agency will be able to make advances from the fund on behalf of the Minister for Finance, subject to directions or guidelines which he may give. This will give freedom to the agency in funding the various payments which it will need to make on an ongoing basis in the course of its claims management activities, without having to go to the Minister seeking advances from the fund each time the need arises.
In terms of normal accountancy procedures controlling Exchequer moneys how will it come back into, say, a Vote of either the Department of Finance or a specific Department? The agency may be negotiating with the legal representatives of somebody who fell down a stairs and it decides to give them £100,000. It can take at least part of that out of the Post Office Savings Bank fund. Where does it come back into——
It is catered for in the subhead of one of the Estimates in the Department. A Department has to reimburse the agency.
Under which section of the Bill?
The committee went into private session at7.08 p.m. and resumed in public session at7.09 p.m.
Amendment agreed to.
Section 16, as amended, agreed to.
Section 17 agreed to.
SECTION 18.
Question proposed: "That section 18 stand part of the Bill."
A "designated body" includes a vocational education committee and also health boards. If we take the case of an adult education class where physical education is involved, and to come back to Deputy Noonan's original point about reporting any adverse incident to the agency as soon as may be possible, does that mean that whoever is in charge of that adult education class will have to report back or is that different?
That is a separate issue.
Question put and agreed to.
Sections 19 to 23, inclusive, agreed to.
SECTION 24.
Question proposed: "That section 24 stand part of the Bill."
Will the Minister read the note on this section?
This section clarifies that the operator of the central treasury service is not required to hold a banking licence. Section 7(1) of the Central Bank Act, 1971, requires any person carrying on banking business to hold a licence from the Central Bank. "Banking business" is defined as the business of accepting on own account sums of money from the public in the form of deposits or other repayable funds. As availability of the central treasury service is confined to non-commercial bodies operating under the aegis of a Minister, it is unlikely that the service could be construed as accepting of deposits from the public, hence it is unlikely that the NTMA will be required to hold a banking licence in order to operate the central treasury service. To avoid any doubt in the matter, however, this section specifically excludes the central treasury service from the requirement to hold a banking licence.
Question put and agreed to.
Section 25 agreed to.
SECTION 26.
Question proposed: "That section 26 stand part of the Bill."
The Minister is amending the Vocational Education Act. Is that to ensure that the agency can take over the function?
This section amends the Vocational Education Act, 1930, in order to allow vocational education committees utilise the central treasury service and to place deposits with financial institutions other than their treasurer bank. Under sections 47 and 48 of the Vocational Education Act, 1930, vocational education committees are required to appoint a bank as their treasurer and are restricted to using the services of their treasurer banks exclusively for all banking services. This restriction would prevent them from availing of either the central treasury service or seeking alternative deposit arrangements for temporary surpluses that may arise in their accounts. The amendment enables vocational education committees to place such surpluses with the central treasury service or with any EU credit institution regulated by the relevant regulatory authority in its home member state. It widens the options available to vocational education committees with a view to achieving better returns on cash surpluses.
I draw attention to this because there is an analogous situation in the first part of the Bill——
Why?
——with the reserved functions of local authorities, to which I referred earlier. The Minister of State should examine that to see if a section is required to allow the Minister to designate a local authority as a State authority for the purposes of the claims agency.
I will do that, as I told the Deputy earlier.
Question put and agreed to.
Section 27 agreed to.
SECTION 28.
Amendment No. 27 is in the name of the Minister. Amendment No. 28 is related so we will discuss Nos. 27 and 28 together, by agreement.
I move amendment No. 27:
In page 19, between lines 25 and 26, to insert the following subsection:
"(5) The Agency shall keep in such form as may be approved of by the Minister all proper and usual accounts in relation to the performance by it of the function delegated to it under subsection (1), and it shall, whenever requested to do so by the Minister, furnish such accounts to him or her or provide him or her with such information in relation to such accounts as he or she may specify or both.”.
Sections 28 and 29 provide for the delegation to the NTMA of the functions of the Minister for Finance and other Ministers respectively relating to the investment of Government funds. The legislation establishing such funds usually contains provisions on the keeping of accounts of the funds by the Minister concerned. These accounts are then subject to audit by the Comptroller and Auditor General and laid before the Oireachtas.
The amendments clarify the agency's obligations to keep accounts with regard to the investment of any fund delegated to it and to supply any information required by the relevant Minister to enable him or her compile any accounts in relation to the fund as may be provided for by statute. Additionally, it is good practice to clearly set out in legislation the responsibilities of the NTMA to keep accounts with regard to the investment of Government funds, given the potentially large sums involved. Fund accounts will be audited by the Comptroller and Auditor General in the normal manner, that is, the accounts kept by the Minister which will include the information supplied by the NTMA and audited by the Comptroller and Auditor General, but will not audit accounts kept by the NTMA directly.
Do I take it that if a claim is paid by the agency on behalf of a State authority, say, the Department of Education and Science, it will be the Accounting Officer in that Department who will have responsibility rather than the chief executive of the NTMA, in fulfilling the role of Accounting Officer and appearing before the Committee of Public Accounts?
It only applies in relation to the fund management. In other areas, the NTMA is directly accountable.
But this would not apply on the claims agency. It is confined to this Part.
Yes.
My apologies. I was unexpectedly detained at another meeting.
The Deputy was successful in his absence on an amendment.
I thank the Minister for his co-operation. As I understand it, it is intended to passively invest, if I can borrow that phrase, the moneys in this fund or is it in any way constrained as to how this money may be invested on behalf of the individual Minister who technically owns it?
The legislation sets out how the fund will be set up and we can give them guidelines on the way they can invest the moneys. The purpose is to try to maximise the benefits and the returns that are available under any particular——
I thought the Minister said on Second Stage that it was intended that it should first apply to the social insurance fund and that it was intended primarily that it would simply be put on deposit, for want of a better phrase, rather than invested in an active way.
I do not remember saying that. I am sure I did not——
Perhaps I misunderstood.
——in that narrow sense. One of the reasons for bringing the NTMA into it is that it has the expertise to carry out the functions we want it to do, which does not necessarily exist in-house. We want to maximise the use of the NTMA.
Section 27(a) states that the application of the moneys in the fund concerned for the purpose of acquiring, holding or disposing of any right or interest, direct or indirect, in any asset... What does that mean?
"Fund" is defined as including all funds in which any Minister of the Government has either a management or a controlling function, or both. "Investment" is defined as encompassing both the investment of moneys in any Government fund or the placing of fund moneys in accounts. The actual ways in which the moneys in any particular fund may be invested will be set out in the legislation governing that fund.
The social insurance fund is covered by existing legislation.
Yes.
Does that determine how that can be invested?
Yes.
Is there a broad level of investment possibilities for it?
It is invested in mainly bonds and accounts.
That is narrow enough.
If the Deputy wishes, I can give him a copy of the document covering that.
We talked about the pension reserve fund last week, which allows for a fairly broad level of investment possibilities. I understood this application of the fund investment for the social insurance fund would be much more narrow than that. I wanted to clarify that point.
Yes.
Amendment agreed to.
Section 28, as amended, agreed to.
SECTION 29.
I move amendment No. 28:
In page 19, between lines 41 and 42, to insert the following subsection:
"(4) The Agency shall keep in such form as may be approved of by the Minister of the Government concerned all proper and usual accounts in relation to the performance by it of any function on behalf of that Minister of the Government under subsection (1), and it shall, whenever requested to do so by that Minister of the Government, furnish such accounts to him or her or provide him or her with such information in relation to such accounts as he or she may specify or both.”.
Amendment agreed to.
Section 29, as amended agreed to.
SECTION 30.
I move amendment No. 29:
In page 20, lines 12 and 13, to delete subsection (3).
This section ensures that the NTMA may provide consultancy service in its areas of expertise. The agency has been previously involved in consultancy projects in central and eastern Europe, South America and Asia. In all cases, the clients have been the Ministers for Finance in the respective countries. Apart from revenues generated, the agency considered that consultancy has brought additional benefits in the form of broadening the skill base of its employees. However, the National Treasury Management Agency Act, 1990, does not include a formal provision to provide consultancy services to parties other than the Government. This section formally empowers the agency to undertake such assignments. Subsection (3) provides that the agency shall be deemed to have had the authority to provide consultancy services since its establishment in 1990. This provision was included to ensure that there is no legal doubt as to the statutory authority of the NTMA in relation to consultancy work, which is already carried out. The amendment will delete this subsection and, therefore, I cannot accept the amendment.
Is the Minister of State satisfied that this will stand up?
Yes, that is the legal opinion.
If it was a company, I am not sure it could retrospectively be given the power to have done this, that or the other.
The Attorney General's office recommended that we do it this way. It has been done that way since it was set up.
To pursue my analogy further, in the case of a company, one would have to set out whether it has certain powers in its memorandum and articles of association. If it did not have certain powers at certain times, one could not retrospectively give them to it.
It was presumed to have had them all along.
This is just a belt and braces job.
Yes.
Amendment, by leave, withdrawn.
Section 30 agreed to.
SECTION 31.
I move amendment No. 30:
In page 20, subsection (3), lines 22 to 24, to delete "paid into, or otherwise disposed for the benefit of, the Exchequer in such manner as the Minister may direct" and substitute "paid into the Exchequer".
This subsection provides that income from consultancy work carried out by the agency may be used to defray the agency's expenses or may be paid into the Exchequer. The phrase "otherwise disposed for the benefit of the Exchequer" was included as it is usual with legislative provisions covering payments to the Exchequer. However, in practice the only way in which consultancy revenues can be disposed of for the benefit of the Exchequer other than paying them directly into the Exchequer is by defraying the agency's expenses. The use of consultancy moneys in this manner is already provided for separately in the subsection, hence the phrase "otherwise disposed for the benefit of the Exchequer" in unnecessary and the amendment provides for its deletion.
Amendment agreed to.
Section 31, as amended, agreed to.
Sections 32 and 33 agreed to.
SCHEDULE.
I move amendment No. 31:
In page 21, before the Schedule, to insert the following new Schedule:
"SCHEDULE
BODIES UNDER PARAGRAPH (C) OF DEFINITION OF ’STATE AUTHORITY’
Civil Service Commissioners
Commissioner of Valuation
Commissioners of Public Works in Ireland
Comptroller and Auditor General
Controller of Patents, Designs and Trade Marks
Courts Service
Director General of the Central Statistics Office
Local Appointments Commissioners
National Gallery of Ireland
Office of the Houses of the Oireachtas
Office of the Secretary to the President
Ombudsman
Registrar of Deeds
Registrar of Titles
Revenue Commissioners
State Laboratory.".
On the Schedule, under section 11, for example, would a person, who might not be a qualified physical education teacher employed by a VEC, be obliged to report an incident such as a team member suffering an injury during a soccer or basketball game?
No.
Health boards come under this area and the issue of medical negligence has become more prevalent.
Medical negligence is not covered under the Bill.
Amendment agreed to.
Title agreed to.