African Development (Bank and Fund) Bill 2018: Committee Stage

I welcome the Minister of State, Deputy D'Arcy, and his officials to the meeting. Five amendments have been tabled to the Bill and we will now move to consideration of it.

SECTION 1

Amendment No. 1 is related to amendment No. 5 and both may be discussed together.

I move amendment No. 1:

In page 3, line 13, to delete “African Development (Bank and Fund) Act 2018” and substitute “Finance (African Development (Bank and Fund) and Miscellaneous Provisions) Act 2018”.

This amendment simply changes the Short Title and Long Title of the Bill to reflect amendments Nos. 3 and 4. These are technical provisions.

Amendment agreed to.
Section 1, as amended, agreed to.
Sections 2 to 4, inclusive, agreed to.
SECTION 5

Amendment No. 2 is out of order. It is not relevant to the provisions of the Bill.

Amendment No. 2 not moved.
Question proposed: "That section 5 stand part of the Bill."

The amendment tabled by Deputy Eamon Ryan chimes with my contribution in this respect to the debate on Second Stage. It related to the need for the agreement to be stronger, for example, in the context of environmental protection and human rights. The question I asked at the time was what structures were in place to monitor the human rights and due diligence of companies that would be beneficiaries of this fund. That is still not known to us. Also, focus needs to be put on the issue of renewable energy technologies to help address the issues in terms of climate change and the particular specific needs of African countries. While this amendment has been ruled out of order and I am not challenging that, it tried to capture some of those issues, which I will seek to consider on Report Stage. I would appreciate a response to those issues regarding environmental protection, human rights and climate change.

A similar question was raised regarding the Asian Infrastructure Investment Bank, AIIB, Bill, when we passed it this time last year. On joining, as is the case with all development banks, our engagement with the African Development Bank Fund will be guided and informed. Ireland's overall approach to development, including in the areas emphasised by our international development policy, One World, One Future, provides focus for our engagement in all multilateral forums and processes.

As members of the committee may be aware, this policy is under review to ensure that our development ambition takes note of development challenges and initiatives such as the sustainable development goals. The new policy will have been shaped by a significant consultative process, ensuring that its vision of this world is both relevant to modern challenges and anchored in our foreign policy values working towards a world that is more equal, peaceful and sustainable. I believe that embedding and prescribing the nature of Ireland's engagement with the bank and the fund within legislation, as proposed by the amendment, would restrict and limit Ireland's capacity for similar development policy evolution and coherence.

Regarding the suggestion in the amendment, which has been ruled out of order, on reporting arrangements to the Oireachtas, I am sure the Minister will give full consideration to the views in the amendment, and while not accepting it, they will be considered.

What protections in terms of human rights are in place with respect to companies that receive money from this fund? We are investing in a development bank, which is a worthy instrument in itself, but how do we as a State monitor the beneficiaries of this fund?

The bank has integrated safeguard systems unanimously agreed by the board of directors going back to 2013. That is the cornerstone of the bank's strategy to promote growth that is socially inclusive and environmentally sustainable. Additionally, as highlighted by the Multilateral Organisation Performance Assessment Network conducted in 2016, safeguards and standards are an area where the bank is particularly strong, which facilitates the delivery of social and environmental standards and the screening of projects, for example, against gender and climate change criteria. It is not a question of us saying, "There you go, operate as you see fit." This is pretty standard now for all the multilateral development banks.

In terms of One World, One Future regarding the achievement of gender equality, this is also an open issue upon which the bank and the fund place a special emphasis and they actively seek to address the issue across all operations.

Question put and agreed to.
Section 6 agreed to.
NEW SECTIONS

I move amendment No. 3:

In page 5, after line 5, to insert the following:

“PART 4

MISCELLANEOUS AMENDMENTS

Amendment of International Finance Corporation Act 1958

7. The International Finance Corporation Act 1958 is amended—

(a) in section 1, in the definition of ‘the Agreement’, by inserting “, and any amendments to the agreement that are approved by Dáil Éireann pursuant to Article 29.5.2° of the Constitution” after “in the Schedule to this Act”, and

(b) in section 2—

(i) by designating that section as subsection (1), and

(ii) by inserting after subsection (1) the following subsection:

“(2) Where Dáil Éireann has approved, pursuant to Article 29.5.2° of the Constitution, an amendment to the Agreement, the Minister for Finance shall, as soon as may be thereafter, cause notice of such approval to be published in Iris Oifigiúil.”.”.

This amendment relates to the International Finance Corporation Act 1958, the legislation governing Ireland's engagement with the International Financial Corporation, the IFC arm of the World Bank, which is involved in encouraging private sector development in developing countries. The amendment seeks to amend sections 1 and 2 of Act to allow for changes in the International Finance Corporation's articles of agreement to be approved by way of Dáil resolution rather than primary legislation.

Amendment agreed to.

I move amendment No. 4:

In page 5, after line 5, to insert the following:

“Amendment of section 851A of Taxes Consolidation Act 1997

8. Section 851A of the Taxes Consolidation Act 1997 (No. 39 of 1997) is amended by inserting after subsection (9) the following subsection:

“(9A) Nothing in this section shall prevent the due disclosure in the course of duties of taxpayer information by an official of the Department of Finance to the Information Commissioner where the disclosure is required pursuant to the Freedom of Information Act 2014.”.”.

This amendment relates to section 851A of the Taxes Consolidation Act 1997 which provides the basis for the confidentiality of taxpayer information. The proposed amendment seeks to allow for this information to be disclosed by the Department of Finance when authorised by the Freedom of Information Act 2014. This amendment is especially time sensitive as it relates to an ongoing freedom of information case.

What limits apply in this regard? Does this allow for all Revenue data to be exchanged in this way where a request has been made?

I will read the briefing note as this is an important provision. This section amends 851A of the Taxes Consolidation Act 1997. Section 851A provides the basis for confidentiality of taxpayer information. It also provides the basis for the circumstances in which such information can be disclosed by the Revenue Commissioners, including the limited circumstances in which such information can be disclosed to the Department of Finance. The proposed amendment will address a conflict between the legislative provisions of section 851A and those of the Freedom of Information Act, which currently prevents the Department of Finance from providing records to the Office of the Information Commissioner even when it is statutorily required to do so in the context of the operation of the freedom of information legislation.

This change in law is necessitated by a specific issue which has arisen. This issue arose during the course of a review of the freedom of information decision by the Information Commissioner which, in part, involved records which are taxpayer confidential. Under the current provisions of section 851A, officials in the Department of Finance are precluded from providing these records to the Information Commissioner as to do so would constitute a criminal offence. However, on the other hand, under the Freedom of Information Act, there is a statutory requirement to furnish this information to the Information Commissioner and failure to comply may constitute a criminal offence. This results in a highly unsatisfactory legal position with conflicting legislative provisions and this prevents the Department from providing the records to the Information Commissioner as it wishes to do so.

The proposed amendment to section 851A should address this legislative conflict and remove the anomaly. It will ensure that the requisite records can be provided to the Information Commissioner so that the commissioner can conduct a review and fulfil his statutory function without further delay.

Department of Finance officials had initially explored the possibility of including this amendment in this year's Finance Bill. However, the Department was advised that the proposed amendment was inappropriate for inclusion in a money Bill given that it did not have money Bill status. Therefore, it is necessary to use an alternative, such as this Bill, to bring forward the amendment. Under the measure, the Department of Finance can receive confidential taxpayer information from the Revenue Commissioners solely for specific limited purposes, namely, in the context of policy formulation and in connection with state aid matters. It is important to note that any Revenue officer or any person, including Department of Finance officials, to whom taxpayer information is disclosed and who knowingly provides to any person any taxpayer information or uses any taxpayer information otherwise than in the course of administering or enforcing the tax Acts shall be guilty of an offence and shall be liable to criminal sanction.

Do I take it that the information is provided by an official in the Department of Finance as opposed to the Revenue Commissioners?

The Department of Finance officials may have information relating to the tax status of a company. If there was a state aid case coming, the Revenue Commissioners would give information to the Department of Finance so that it could defend a position or formulate policy. It is the use of that information that is now allowed to go to the Information Commissioner.

The information would have originated with the Revenue Commissioners officials. Is that correct?

Yes. It is confidential but it is allowed to be passed for the formulation of policy or, potentially, the defence of a state aid case. There is a conflict. There are two legislative measures, both of which disallow such a move.

The Minister of State is trying to make it legal.

Yes. A criminal sanction could apply in both cases.

I understand that. I am not opposed to the section.

At present, the Revenue Commissioners can give the relevant information to the Information Commissioner but Department of Finance officials cannot. This rectifies the position.

That answers a further question I had about the role of the Revenue Commissioners. This involves an official or officials within the Department having access to taxpayer information. What provisions are set out in law relating to officials in the Department as opposed to officials in the Revenue Commissioners having access to taxpayers' personal information?

Only for the purposes of policy can they receive information from Revenue, or to defend a state aid case against the State.

They are allowed to do it only on the basis of those two circumstances. Is that correct? In the case of policy formulation we may look for information to be provided in a way such that taxpayers are not identified by the Department. I assume the Minister will know about it as well. I assume he or she is entitled to that information with the individual being identifiable.

Yes, the information is general and broad, but in some circumstances the information could identify the company, potentially, without anyone being told.

I am keen to tease through this. Would it be right to say that the only case where the Department would have access to information on a taxpayer where the subject could be identifiable would not be in the case of policy, although it seems one could make assumptions about the identity? However, a subject would be identifiable in a state aid case. Is that the situation? Heretofore, no information has even been passed between the Department of Finance and the Information Commissioner in respect of taxpayer information. Is that correct?

Yes, because it would be a criminal offence if that was done.

It was a criminal offence if they did not do it as well.

I know. This rectifies the anomaly and the conflicting legislation.

Information has not been passed so far and this will allow it to be passed.

Are there any restrictions on passing information to European authorities on the part of a Department official?

Under state aid rules, European authorities can request information.

Can they request it from officials?

They can request it from Revenue and the Department of Finance.

I have one final question relating to European access to information, especially environmental legislation and so on. Is there a restriction on officials providing information through that forum? If they use the European authorities to access information, are there restrictions on the officials passing the information in a given case? It would amount to accessing information using a different mechanism. It is not a freedom of information mechanism but it could be used frequently.

I do not know. There are general powers.

I may liaise on that matter specifically. Otherwise, I have no issue with this.

Amendment agreed to.
Schedules 1 and 2 agreed to.
TITLE

I move amendment No. 5:

In page 3, line 8, after “agreements;” to insert “to amend the International Finance Corporation Act 1958 and the Taxes Consolidation Act 1997;”.

Amendment agreed to.
Title, as amended, agreed to.
Bill reported with amendments.