Members will recall that we are discussing amendments Nos. 36 and 37 together.
Regulation of Providers of Building Works Bill 2022: Committee Stage (Resumed)
SECTION 44
Debate resumed on amendment No. 36:
In page 45, between lines 34 and 35, to insert the following:
“(i) failure to comply with building control regulations.”.
- (Deputy Eoin Ó Broin)
Section 44 outlines the grounds for complaint under the Bill regarding a registered member to the registration body. We must oppose amendments Nos. 36 and 37 to section 44, which seek to provide that failure to comply with building regulations and planning permissions are grounds for complaint. These amendments are outside the scope of the Bill because this register is a register of competence of providers of building works. Failure to comply with building regulations is a matter for the building control authorities and falls under the Building Control Act 1990. Failure to comply with planning permissions is a matter for planning authorities and falls under the Planning and Development Act 2000. Complaints regarding these are matters for the relevant authorities as I have outlined and cannot be grounds for complaint under the Bill. Therefore, I must oppose amendments Nos. 36 and 37.
Alongside the question of who the registration body is, this is probably the single greatest weakness of this legislation. There is nothing in building control regulation or enforcement or in planning law that empowers any agency of the State to prevent someone from building again in the future if he or she has a proven track record of being in breach of building control or planning. I made this point at the end of the last session but I wish to repeat it because it is important to understand where I am coming from.
Take, for example, the developer that built Priory Hall, the developer that build Beacon South Quarter, the developer that built Brú na Sionna or whatever. The Minister of State knows them as well as I. These are houses, apartments and duplexes that hard-working families spent considerable sums of money on to purchase as homes. In each of those cases, even if building control had been taken to its absolute limit, which it was not in most cases with the possible exception of Priory Hall, and the building contractor, developer or other associated construction professionals had been found to be in breach of building controls, fined or even imprisoned – breaches of the Building Control (Amendment) Regulations can carry custodial sentences – none of that would have prevented the very same builders, developers or contractors from starting up the next day, creating new companies and getting back in the game. In fact, the developer of Priory Hall is back in the building game in another jurisdiction. That is a matter of public record.
I accept that what I am proposing is outside the scope of what the Government is bringing to us, but my argument is that we have a once-in-a-generation opportunity to provide a level of deterrence to ensure that construction industry professionals operate with the level of competence that this register requests them to have. I know that the Minister of State will not accept my amendment, but this is one where I wish to at least try to reason with him to go away and consider the proposition. If we do not do this, either in the form of my amendment or some other amendment that his team comes back with, we will essentially be saying – because the Government has no other plans to deal with this dilemma in any other part of the legislative programme – that we do not believe that people who build defective buildings should be prohibited from building more buildings. The Minister of State referred to a failure of competence. What better example is there of a failure of competence than building Priory Hall, Brú na Sionna or Beacon South Quarter?
I appeal to the Minister of State to extend the scope of this legislation beyond what it is currently being proposed to do. This would give a level of comfort to people, be they signing a contract for a home extension or buying an apartment, duplex or house. Yes, there are building controls and people could make formal complaints to the building control authorities, which could instigate an investigation and pursue the matter.
In parallel, they could take a case to this register and if they could demonstrate a failure of competence and compliance with building control regulations, that person would be struck off. I will give one example and then I will conclude. The example I will give is in the public domain and well established.
There is a former Ben Dunne gymnasium on the Coldcut Road in my constituency. A developer bought it and successfully applied for planning permission for 37 apartments. That was a good thing because the area needs apartments. He decided not to proceed and applied for 48 apartments, was refused by the local authority, appealed to the board and yet fitted out the 48 apartments and got tenants for all of them. They are all fully occupied today. Not a single certificate under the building control (amendment) regulations was submitted to the local authority. There was no commencement notice, fire certificate or completion certificate.
The developer is flagrantly in breach of building control regulations and planning permission but is permitted to continue to develop on a case-by-case basis subject to getting planning permission and all the rest of it. Even if South Dublin County Council concludes a successful building control enforcement action against him, which is a big if, and gets the maximum fine of €5,000 per breach of the building control amendment regulations, which is what that legislation stipulates, he can still go out the next day and continue the same practice. That must be outlawed and this legislation provides us with an opportunity to do that.
The Minister of State can see I am genuinely passionate about this issue having worked with many of these issues, as has Deputy Cian O'Callaghan. I know the Minister of State will not accept this amendment now. I urge him to discuss the matter with his officials and find a way of ensuring that someone who has been found to be in breach of the building control regulations will not be allowed to be on this register.
In the case I am talking about, the developer in question, who is also a landlord, took a bunch of tenants to the Residential Tenancies Board, RTB, over rent arrears. In the case in the RTB - again this is on the public record - I testified and demonstrated beyond reasonable doubt that he had not complied with building control (amendment) regulations. He had not supplied any certificates for the 48 apartments. He accepted that on the record of the RTB hearing. It is a matter of fact, established in the legally binding determination that is published. That should be sufficient evidence for somebody to make a complaint to the construction industry register, outlining that as this individual has accepted they flagrantly broke building control (amendment) regulations and building control law, they should be struck off and never be allowed to build again. That is what I am urging the Minister of State to do.
This legislation provides an opportunity to do this, although perhaps not with the wording or in the section I have proposed. If the Minister of State does not accept this, he will be missing an opportunity to make a profound change to our building regime and construction sector, and I think people will not forgive the Government. People will look on this as a lost opportunity to do something really significant. Whatever the Minister of State might say in response to me, I urge him to go back to the Department and consider this because it could be a really positive step if it is done in the right way.
People will thank the Minister of State personally and the building industry would also benefit from it because it would help to flush out the rogue operators and ensure that good, professional, high-quality construction industry professionals would be able to operate in a much cleaner environment.
Is the Deputy suggesting that someone should be struck off for any breach of building control regulations? I know the example he gave is a very flagrant abuse, but is he talking about anything?
I am urging the Minister of State to use the technical expertise of his officials to look at the issue. The sanctions in later sanctions distinguish between serious breaches and less serious breaches involving a range of punishments. Being struck off is only one of those. I accept that people sometimes breach building regulations without knowing or understanding them. Sometimes they are minor breaches, which is not much of a problem. In some instances, when these matters have been brought to their attention after the fact builders or developers go back in and remediate at their own cost. Those types of builders and developers should be congratulated on doing that.
Just for my own clarification, the Deputy's proposed amendment would cover failure to comply with anything in the building control regulations.
My amendment would allow people to make complaints on the basis of any breach. It is then up to the registration body and the relevant panel to decide what level of sanction then applies.
I understand.
That is a very important part. This section is about individuals having the right to make a complaint against someone who is registered and for that complaint to be investigated. Just because breach of building regulations is one of the grounds for complaint, if it is minor, it does not necessarily mean that the person would be struck off the register. If there were serious breaches of building control regulations, people could raise a complaint and they could be struck off the register which would then mean they would no longer be able to build; it would not be legal for them to do so. When that is said out loud, I am very confident there is agreement in all parties across the Oireachtas. I do not believe anyone thinks it is in any way tolerable for people to have flagrant breaches of building control regulations on an ongoing basis, especially given recent history in this country and the massive costs we have talked about already.
As Deputy Ó Broin said, people in the industry want this. Some of the most vocal people on this are builders. We often hear of builders who have experience of working in the UK, for example. They come back here and cannot get over how lax some of these things are and why it is tolerated. Most builders take pride in their work and they do not want a minority of rogue builders who create enormous damage and reputational damage for everyone working in the industry. People who are serious about the industry, which is most people engaged in it, want this addressed. At a political level, across all parties, I presume everyone wants this addressed. The public want it addressed. If it is not done in this legislation, it will not be addressed. There is a very strong case for it.
I understand the rationale that this is constructed on the basis that people can only make complaints on the technical side related to registration. However, this section deals with competence, criteria and compliance with the building control regulations on a consistent basis. It is a very important form of competence and is highly relevant in that sense. If it is not included in the legislation, especially now that an amendment has been proposed on it, it almost implies that there is a view in the Oireachtas that that would not be an important part of competence for a builder. Clearly, we would all have the view that it is.
I agree with what Deputy Ó Broin has said. I ask the Minister of State to see if this can be done in a way that he is happy with. He may be able to introduce an amendment on Report Stage. If we do not do that, it could be years before this is addressed elsewhere. We appreciate that there is other legislation relating to building control, but we must be able to make it illegal for people who were in flagrant breach of building control regulations to build; they must be struck off. The whole point of having a register is that people like that can be struck off.
I again thank the members for their contributions. We take any breaches of the Building Control Act and the planning Acts very seriously. Some of the examples mentioned have caused heartbreak for people, which is the last thing we want to see happen. It is part of a broader response. Section 44 sets out the grounds for complaint and competence is referred to in section 44(1)(d). Section 28(2)(b) refers to building control regulations in terms of grounds for competence which is important.
Any convictions relating to building control, notices from the court or enforcement notices will be published on the register. That information is available for consumers engaging contractors who may have been convicted in the past or had an order enforced by the courts in the past. That is a very strong safeguard for consumers who are engaging building contractors.
Having a number of State bodies potentially adjudicating on one single case can be a difficulty. In the wider spectrum, including procurement law, many other parts that deliver public infrastructure need to be looked at regarding past performance of building contractors to protect individuals. I believe the Bill is very strong based on what I have said in those two references.
I am not in any way being flippant with the following comment but I want to stress this. Let us imagine I am a developer and following an enforcement by a local authority, I have been found in significant breach of the building control regulations and I have been fined. Let us imagine some other legal binding documents, such as RTB determinations or planning decisions, reflect that. Publishing that but allowing me to continue to trade would be the equivalent of somebody who is convicted in the courts for serious drink driving offences not losing his or her licence but simply publishing that he or she has a conviction for serious drink driving and causing, for example, damage to persons as a result. The idea that we are saying it would still be permissible to trade for those egregious breaches is a fundamental weakness of our system. I will not labour the point. We have a lot of business to get through.
The Minister of State does not understand the opportunity that he is giving up here. I appreciate that his officials will advise him to stick to the text. That is their job. I am appealing to him at a political level, not at a Civil Service level. I mean no disrespect to the officials, who have done a good job in bringing the legislation to this point. I am appealing to him as a politician to go away and think about this. What of people who are guilty of egregious breaches of building control regulation that have had devastating impacts on people's lives, including, for example, in the case of Priory Hall? A man took his own life because of the stress and strain. To the credit of a former party colleague of the Minister of State, the former Taoiseach, Mr. Enda Kenny, at that point in time intervened and ensured the problem would be resolved, but it took that loss of life.
I am politically appealing that the Minister of State goes away and thinks about this. If we do not do it in this Bill, I guarantee I will come back to him in a few years stating that we missed an opportunity and we will not have that again, unless there is a change of Government or there is a change of policy.
I will press these amendments and I will call votes on them. I am appealing to the Minister of State to think hard about this before he discards the central proposition my party is making because we will return to this on Report Stage and in the Seanad. I would much prefer him to bring forward a much more competent and appropriate form of amendment to deal with the matter. If we do not do it here, what we are essentially saying is that people who egregiously break building control regulations and planning conditions can still trade. I accept we will force them to advertise they have a dodgy history but they will still be allowed trade. That is not a credible proposition for us to deal with the issue of building defects that we are still operating with at present.
I take the view that they can still trade. If it has been proven, through this board, that they had a serious breach in terms of their competence, they can be permanently removed from the register. I referenced whereby competence, in the first instance, involves someone having to display compliance with all the criteria, one of which is the Building Control Act. That is a strong protection.
I concur with the Deputy that this is a significant issue and many families have paid a heavy price in respect of it. I believe that the Bill will go a significant way toward bringing improvements in the construction sector by having a robust register and ensuring people have continuous professional development that they are competent, and if they fail to show competence that the ultimate sanction is that they will be deprived of the right to earn a livelihood and be taken off the register. That is a strong hand that the State is taking with regard to it.
What the Minister of State is saying is interesting, which is that, on the advice of his officials, section 28 would permit the registration body to remove somebody from the register if, for example, it could be proven in a complaint that he or she was responsible for egregious breaches of building controls.
People will look back at this exchange to see whether this provides the relief he is talking about or not. I ask him to be clear and to explain exactly where, in section 28, he believes that power rests because I want that on the record. If he is correct, that is potentially a positive. I want it on the record because if I am correct and it would not be possible, this would be the point at which that argument will allow for it to be tested into the future.
In the first instance, it is clear that under section 28 the building control regulations and the code of practice are key criteria of competence in bringing a complaint forward to the board to adjudicate on. If the other State agencies are doing what they are prescribed to do, in the first instance, if the building control authority finds someone at fault and that he or she did not comply with the regulations of building standards, it will have made a determination on that and a complaint is taken to the register that he or she is not competent because he or she has failed to display competence under the building control regulations, and that is a strong robust case for an independent board to adjudicate on.
To be clear, are we talking about section 28(2)?
Yes.
The Minister of State is saying he believes that, for example, if somebody were to buy a property in a building where there were clear and evidenceable breaches of building control, he or she would be able to make a complaint to the board here and by citing section-----
I am not saying that; I am saying that the building control authority in the first instance would have had to have made a determination on the case.
But before they can make the determination, someone has to be able to bring a case.
Absolutely.
They would be able to bring a case on the grounds of section 28(2) where they would use section 28(2) to say to the board that developer X built building Y, there are clear and evidenceable breaches of building control regulations, and, on that basis, they want a complaint to be heard. Is the Minister of State saying that he believes this legislation permits that?
Yes, subject to it being brought to the building control authority because it has to adjudicate on compliance with the building regulations. That is the key point I want to get through. The same is so if it is under the Planning Acts. Obviously, they have to adjudicate on that. They would have to make their determination on it.
I am no longer arguing. I want to tease it out. For example, one could be a concluded enforcement proceedings by a building control authority. If we know a developer has built 48 apartments and has not lodged a single certificate of compliance, even if there is not building control enforcement, it is clear that the developer has breached the law because we know for a fact he or she did not submit his or her commencement certificates, fire, disability or completion. Could a case be brought on those grounds under this provision?
It has to go to the building control authority first. They are charged with making a determination under the building control regulations.
Would there have to be a conviction under the building control regulations?
Absolutely. For clarification, it has to go to the building control authority first.
There is a weakness in that as well in terms of the building control authorities. Many people have issues with developers and builders, building defects and alleged breaches of regulations, and depending on what area they are in, they do not necessarily get a proper follow through in terms of the building control authorities. That is an issue with it.
I am aware of one instance with serious fire safety defects - some of it is on the public record - where the local authority was aware of the defects and it did not use its powers under the building control regulations to take any action against the developer. I read through thousands of pages of documents, under freedom of information, about it. A resident living in that development affected by fire safety defects under this legislation will have no recourse because his or her local authority did not do what it should have done as a building control authority and the resident cannot even make a complaint to this register about it.
I will not comment on a specific case.
Even though there is the documentation to prove it, they would not be able to make a complaint.
I set out the process fairly well.
The Minister of State has.
I do not want to comment on a specific case because I have not the information for it.
I am merely saying-----
I hear the Deputy's point.
-----there is something positive from my point of view in what the Minister of State is saying but it is still insufficient.
Amendment put:
The Committee divided: Tá, 2; Níl, 6.
Tá
- O'Callaghan, Cian.
- Ó Broin, Eoin.
Níl
- Burke, Peter.
- Duffy, Francis Noel.
- Flaherty, Joe.
- Higgins, Emer.
- Matthews, Steven.
- McAuliffe, Paul.
Amendment declared lost.
I move amendment No. 37:
In page 45, between lines 34 and 35, to insert the following:
“(i) failure to comply with planning permissions.”.
Amendment put:
The Committee divided: Tá, 2; Níl, 6.
Tá
- O'Callaghan, Cian.
- Ó Broin, Eoin.
Níl
- Burke, Peter.
- Duffy, Francis Noel.
- Flaherty, Joe.
- Higgins, Emer.
- Matthews, Steven.
- McAuliffe, Paul.
Amendment declared lost.
Amendments Nos. 38 and 39 are related and may be discussed together, by agreement. Is that agreed? Agreed.
I move amendment No. 38:
In page 46, line 3, to delete “is satisfied” and substitute “can demonstrate”.
The amendment relates to section 44, where the registrar can determine if a complaint is not made in good faith or if it is vexatious or frivolous. My concern is about the wording of the Bill as it stands, which is that "the Registrar is satisfied that" a complaint is either not made in good faith or if it is vexatious or frivolous. I do not know what that means. Against what criteria does the threshold "is satisfied" get met? Who determines that? A much stronger wording would be that the registrar has to be able to demonstrate to the board that a complaint is not made in good faith or it is frivolous or vexatious. I would be interested to hear the Minister of State explain what he thinks "is satisfied" means, the criteria against which that satisfaction could be determined, and whether that would require some level of evidence to be recorded somewhere that could be then tested if there was a dispute, for example, such as in a subsequent court case or challenge at the board.
I will address amendment Nos. 38 and 39, as jointly tabled by Deputies Ó Broin and Gould. I must oppose these amendments. They seek to replace the requirement that the registrar is satisfied that a complaint is not made in good faith or is frivolous, vexatious or without substance or foundation, with a requirement that the registrar demonstrates this. These substitutions are deemed unnecessary, as section 44(3) provides that the registrar shall give notice to the complainant of the decision and the reasons set out for the decision. I therefore oppose both of these amendments.
Again, I am open to being convinced on this. The Minister of State talks about the subsection and the complainant being given the reasons for the decision. Could he speak a bit more about the format he thinks that would take or what level of detail would be provided? On the one hand, it could have a restrictive interpretation, and it could just be a notice that the registrar is satisfied. Is there an obligation on the registrar to set out very clearly, not only his or her opinion but the evidence upon which that opinion is based? That is really what I am trying to get at in this amendment.
As in section 44(3), the reasons for the decision would be set out in writing to the complainant. In section 44(2)(e), the process is very clearly set out, whereby the board must be satisfied with the opinion that a breach occurred. If a complaint is frivolous or there is a reason for the board not to uphold a complaint, it must set out the reasons clearly and provide them to the complainant.
Will it be the function of the board in advance of complaints being made to set out guidance for the registrar to provide criteria against which, for example, a decision can be made on whether a complaint is frivolous, vexatious or not made in good faith, would be decided and evidenced, or is it at the discretion of the registrar what the evidence could or should be?
It is potentially following the making of inquiries by the registrar. It is within the scope of the legislation that the registrar would have to make a determination based on his or her inquiries.
I get that. I appreciate what the Minister of State says. What I am asking is whether the registrar would be provided in advance with some guidance on what he or she should be looking for when making the inquiries. The reason I ask this is to protect the registrar because some of these decisions could end up in court. The Bill very clearly provides an opportunity for a court challenge to a party who feels that he or she has been wrongly decided against. The more robust the process is, and the more protection the registrar has, in terms of decisions he or she may make, the more robust the decisions will be to withstand a subsequent court challenge. Does the Minister of State understand what I am asking?
Yes, I do. The complaints procedure is set out well in section 44.
Obviously, it is compliance with the Act that is the key part or threshold under which it has to hold any complainants. The board is independent to do that.
I have a final question on this. Most of section 44(1) is the grounds of the complaint against the registered construction industry professional. Is the issue of a complaint being made in good faith, frivolous or vexatious, against the complainant set out somewhere in section 44 because I do not see it?
Will the Deputy repeat that?
In response to my last question, the Minister of State said the type of guidance or the areas it would make its inquiries are set out in section 44. Section 44(1) is the grounds of complaint. If I make a complaint and it does not fit within section 44(1) paragraphs (a) through to (h), for example, that is the ground upon which the registrar might say it does not fit into that section and decide on those grounds. I am not sure if that fits a definition of frivolous or vexatious.
I am advised that the grounds for complaints are set out in the Bill. If it is not in adherence with those, then the determination would have to be made. Reasons for that would have to be published and sent out to the individual.
That is very clear. However, section 44(2)(b) and (c) do not stipulate that the complaint does not meet the grounds set out in section 44(1)(a) through to (h). They add additional grounds upon which a complaint can be rejected, that it is not made in good faith. How does one determine something is not made in good faith? I could make a complaint under section 44(1)(a), for example. Who determines what is good faith or not? Who determines what is vexatious or not? That is my query. How do they make that determination?
I am advised that it has its natural meaning. It is commonly understood under it, but I will have to double check that and refer back to the Deputy.
I am happy to withdraw the amendment. I am not being obstructive.
I appreciate that.
However, if the Minister of State could give some clarity, by way of a note to the committee either before Report Stage or the Bill going to the Seanad, on what is the natural or ordinary meaning of those terms from a legislative point of view, that would be helpful.
Yes, I can do that.
Amendments Nos. 38 and 39 are withdrawn subject to a note on the matter.
I reserve the right to reintroduce them on Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 39:
In page 46, line 4, to delete “is satisfied” and substitute “can demonstrate”.
Amendment, by leave, withdrawn.
Amendment Nos. 40 and 41 are related and will be discussed together. Amendment No. 41 is a physical alternative to amendment No. 40.
I move amendment No. 40:
In page 46, lines 15 and 16, to delete “the complainant may, at his or her discretion, make a fresh complaint in respect of the matter the subject of the first-mentioned complaint” and substitute “the Registrar shall refer the matter to the Board for investigation”.
What I am seeking to do in this amendment is that where somebody makes a complaint and a decision is taken for mediation or informal processes and if there is no outcome from the mediation or informal process, rather than the person having to resubmit the complaint, the registrar would automatically refer the matter to the board for investigation rather than it being dropped. In this entire process, the onus is put on individuals to come forward and make complaints. That can be quite off-putting and onerous as it is. Many people just will not do that. Even if these processes are relatively easy to navigate, if people are not used to doing that they can find it very off-putting and stressful. If people have made a complaint and the complaint is deemed to have been sufficiently serious that it at least warranted mediation or other processes, if that does not work out the complaint should not simply drop with the onus put on the individual to have to resubmit it. At that point, even though the complaint might still be serious, many people will drop out of the process and we will lose serious complaints. That is the intention behind the amendment.
While it still means the system puts the onus on individuals to make complaints, it just means that when they do that it is less likely that their complaint will be dropped or lost if the mediation processes do not work out. It takes their complaint that bit more seriously, makes it a little more user friendly in that sense and places a little less of a burden on individuals who come forward to make complaints. It also means that if the complaint is initially put into a mediation process or some other informal process, the individual is not put at a disadvantage just because that does not work out. Those types of processes should never put somebody at a disadvantage. There should always be an additional means of resolving things rather than something that might mean the complaint effectively runs into the ground.
I concur with the Deputy, and my amendment is trying to achieve the same objective. I find subsection (4) very odd. If I make a complaint to the Residential Tenancies Board today about my landlord breaching the terms of the tenancy agreement, the first thing the RTB will do is recommend mediation. As I always recommend to constituents, always go for mediation. It is the reasonable thing to do. If the mediation takes place and it does not provide a suitable outcome, the Residential Tenancies Board automatically moves to adjudication. It has its hearing and its decision. It would be nonsensical to say that if mediation breaks down because, for example, the building contractor does not participate or is just obstructive, the complainant has to go and make a fresh complaint. Unless I am misinterpreting section 44(4), it is essentially suggesting that it has to go back to the start. Deputy Cian O'Callaghan's amendment is probably better drafted than mine in the sense that it refers back to the board for investigation. However, one way or another, if mediation fails for whatever reason, it should automatically go into the adjudication phase rather than requiring somebody to step out of the process and start again. If neither amendment meets the standards of parliamentary drafting, I strongly urge the Minister of State to bring forward a similar amendment on Report Stage.
I thank the Deputies for the amendments. The proposed amendments refer to the role of the registrar in the complaints procedure. Amendment No. 40 seeks to remove the provision that following mediation the complainant may make a fresh complaint. It is appropriate that a fresh complaint is made as it can take into account new information which may have emerged during any mediation process or by other means. Amendment No. 41 seeks to provide that the registrar shall make a legally binding determination. The registrar cannot make a determination on a complaint, it can only refer it to the board for investigation.
This is something we can examine. The point made by the Deputy about the Residential Tenancies Board is a fair one. We will take a look at it.
It is important to remember that if mediation fails in the Residential Tenancies Board process - obviously, it is a different process and I accept they are not completely analogous - it is at that point that information can be submitted. There is a way of improving the wording of section 44(4) that would permit additional information but would not require a fresh complaint. It may simply be that the complainant is offered the opportunity to proceed rather than have to start again. If the Minister of State is willing to give a commitment to look at it, I am happy to withdraw my amendment.
I can do that. When I was looking at it earlier today, it occurred to me that there may be an issue with it. We will have a look at it and refer back to the committee.
Amendment, by leave, withdrawn.
I move amendment No. 41:
In page 46, lines 15 and 16, to delete “the complainant may, at his or her discretion, make a fresh complaint in respect of the matter the subject of the first-mentioned complaint” and substitute “the Registrar shall make a legally binding determination”.
I am happy to withdraw the amendment and reserve the right to reintroduce it.
Amendment, by leave, withdrawn.
Section 44 agreed to.
Sections 45 to 47, inclusive, agreed to.
SECTION 48
I move amendment No. 42:
In page 51, lines 34 and 35, to delete “not make any recommendation, or express any opinion, in the report” and substitute “make a recommendation”.
I am a little perplexed by section 48(3) but, again, I am open to be persuaded that it should be this way.
The relevant section states "the inspector shall not make any recommendation, or express any opinion, in the report as to the sanction that he or she thinks ought to be imposed on the registered person in respect of such improper conduct", etc. I am more used to inspectors or adjudicators in the Residential Tenancies Board or An Bord Pleanála. I know they are not the same but the point I am going to make will be clear to the Minister of State when I make it. The inspectors are the people who sift through all the information, talk to the relevant parties and consider all of the matters at hand. If they are not empowered to make a recommendation in terms of the sanction, who is? I cannot think of a better person to make a recommendation, for example, to the Residential Tenancies Board on foot of a hearing than the adjudicator because he or she has all the information. I do not understand why this provision is there. I invite the Minister of State to explain why and convince me that we should depart from this.
I make the same point with regard to An Bord Pleanála. The inspector is the person who goes out and assesses the planning application and goes through all the files. Because of that knowledge, the inspector then makes a recommendation as to whether the board should proceed or not. It is up to the board, as we know from An Bord Pleanála, not to accept the recommendation of the inspector. It is unusual in the case of the Residential Tenancies Board for the recommendation of an adjudicator not to be accepted but I cannot see how the board could make a better decision without a recommendation from the person who knows the finer grain of the complaint and the information pertaining to it.
I will now address amendment No. 42. We must oppose this amendment, which seeks to provide that the inspector make a recommendation to the board on sanction. The role of the inspector is simply to decide whether improper conduct has occurred or is occurring. The board must also be satisfied that improper conduct has occurred in accordance with section 49. This section also provides that the board shall make a decision on the appropriate sanction to be applied. The Bill provides that the board shall be independent in the performance of its functions.
I heard the case put forward by the Deputy. The inspector has the direct skill set to adjudicate on the facts of the case if improper conduct in terms of competence has occurred. The independent board has the skill set to determine the sanction. This whole area deals with stopping someone's right to earn a livelihood and potentially removing that person from the register. Those are significant sanctions and we need the broader skills set of an independent board to determine the correct sanction. The inspector's role is clearly defined. He or she must present the facts to the board if it is found that a person did not comply with proper competence requirements.
To be clear, I am not proposing that the inspector makes the decision. My proposal is for a dual approach. The inspectors, based on all the information they have, make a recommendation but ultimately, for the very reasons the Minister of State has outlined, the board must then decide if that recommendation is appropriate or not. I fail to see why the Minister of State would not allow the inspector to make a recommendation. That is the one point the Minister of State has not addressed. Such a recommendation might be that the matter is for the board to decide. It may be that a particular case is finely tuned and the inspector is not in a position to make such a recommendation. However, I see no reason not to allow the inspector to make a recommendation because the inspector will have spent far more time sifting through the fine grain of the case. Some of these can be very complex cases with substantial levels of documentation. They could require a level of interaction with the complainant and the construction industry professional. I do not understand why a recommendation would not be possible. Can the Minister of State convince me why that should not be so? The decision is ultimately made by the board on the basis of that broader criteria so that safety net would be there anyway.
It is my view that the inspector has the particular skill set to adjudicate on whether improper conduct has occurred or not. Inspectors, through their experiences and skill sets, are able to determine whether a breach has occurred or not. However, I think the board's independence must be paramount in deciding what should happen within the broad range of sanction. The board must adjudicate within a wide scope whereas the scope within which the inspector will work is more narrow. I hope the issues on which the inspector will adjudicate are more black and white. Inspectors will gather all the facts and make a determination but the board will have a wider scope and must be independent in its decision-making, based on the recommendation of the inspector as to whether improper conduct has occurred.
I have one more question to ask that may be dealt with somewhere in the Bill and I have not come across it. Consider the situation when the board is making the decision of what sanction to apply. The inspector comes along, having completed an investigation, and tells the board that he or she is of the view that improper conduct by the registered person has occurred. Where in the Bill is guidance set out? Where are the parameters within which the board will make its decision? I am inviting the Minister of State to put that on the record for the benefit of posterity.
That is in section 49, which refers to major and minor sanctions.
Section 49 sets out the range of sanctions. I am asking about the criteria against which the board would determine which of the sanctions is appropriate. I do not see that in section 49 but it could be that I am not reading it properly.
As is outlined in section 49(2)(a), if the board thinks the circumstances of the case establish improper conduct, sanctions can be imposed.
Is the Minister of State talking about section 49(2)(a)?
I am.
That section states, "If it is satisfied that improper conduct by a registered person to whom the investigation report relates has occurred is occurring, shall, as it thinks fit ..." We are not setting out how the board should make its decision.
We are not doing so explicitly. The board must make its own determination on that issue, once it is clearly in compliance with the scope of the Bill.
I am asking for a reason. Let us take the most extreme case in which there is serious improper conduct or allegations thereof and a decision is made to strike somebody off the register. The individual or company struck off the register then decides to test that decision in court. I would have thought that one of the things such a person or company would be looking to challenge would be the basis on which the board made its determination.
The basis on which the board would make such a determination is outlined in section 54.
I am only asking this to tease out the issue. It is a genuine question. On that basis, I am happy to withdraw the amendment but I may come back in on section 54. I will need some time to read it again before Report Stage.
Amendment, by leave, withdrawn.
Section 48 agreed to.
SECTION 49
Amendment No. 43 has been ruled out of order as not relevant to the provisions of the Bill.
Amendment No. 43 not moved.
Amendments Nos. 44 and 45 are related and will be discussed together. Amendment No. 45 is consequential on amendment No. 44.
I move amendment No. 44:
In page 53, between lines 23 and 24, to insert the following:
“(d) fines,”.
Amendment No. 45 is a technical amendment to fix the lettering if amendment No. 44 is agreed upon so I do not intend to say more than that on amendment No. 45.
Amendment No. 44 adds to the list of major sanctions. On top of the potential options for removing the registered person from the register or suspending them from it, or the removal of a person from a particular relevant division of the register, this amendment would also provide that a major sanction could include fines. Amendment No. 45 allows for a combination of these measures, including fines. Given we are talking about major sanctions rather than minor ones, it would be appropriate that one of the options would be a fine and not just the other provisions to act as a deterrent for major breaches. I look forward to hearing what the Minister of State has to say in that regard.
I will address amendments Nos. 44 and 45, which have been tabled by the Deputy. These amendments seek to allow the board to impose fines as a sanction. We must oppose these amendments as the board cannot impose fines on a registered person.
The ability to impose fines is provided for in section 60 of the Bill, under offences and penalties. I must, therefore, oppose amendments Nos. 44 and 45.
Will the Minister of State please explain a bit more? Is it that the board cannot impose the fines, but they can be imposed-----
Essentially, it has to be prosecuted.
That is fair enough.
Before Deputy Ó Broin comes in, I wish to mention one other aspect. After I submitted the amendments for this Stage, I received a good submission and it is not reflected in any of my amendments. The submission is from the Heating and Plumbing Association of Ireland. They have some particular concerns about the Bill with regard to people working in mechanical services. I want to flag those issues with the Minister of State and bring them to his attention. I received this submission after the deadline for amendments.
Does the Deputy want to send that on to us?
Why can the board not impose fines?
It can for summary offences but for serious offences it must prosecute and go before the courts. Under the law, obviously, the prosecution must take place before the fine can be imposed. It has to be prosecuted.
What order of fines-----
The board can take the prosecution but the courts will decide after that.
Why Is the Minister of State saying that it has to go to the courts?
A serious fine will have to go to the courts, obviously.
Not obviously, because I am making the point. What scale of fine is serious in that context?
A prosecution has to be taken in order to impose a fine in the first instance.
I heard the Minister of State but I am going to explain why I do not believe that is the case. In the Minister of State's view, what order of fine are we talking about for a prosecution to be required,?
Section-----
I am talking about the amount of money. What is the level of fine?
It is a class A fine.
How much is that?
A summary conviction of a class A fine. On indictment, of a fine not exceeding €500,000.
That is €500,000. I am genuinely interested in this. What level of fine would not require a formal prosecution?
It does not provide for any fines.
There are no fines that could be issued by the board and any level of fine would have to go to a prosecution. Does the Minister of State mind me asking why? This is an issue we often have. If one considers the Residential Tenancies Board, for example, that board would certainly not issue fines of €500,000. Certainly when one is getting to that level of fine, there is an argument for a court prosecution. The Residential Tenancies Board can, however, impose fines of up to €20,000 on foot of a determination approved by the board. It does not require any recourse to the courts. There is a reason I say this. It relates to my amendment, which I will come to shortly after we have dealt with this one. Clearly there is a view, and the current Attorney General is on record as being of this view, that administrative justice is disliked. Those who hold this view believe that any level of fine should always go to the courts. Surely there should be some provision for a level of fine that can be issued by the board, which would then allow for certain levels of sanctions to progress much more quickly. Clearly, the person against whom that sanction is imposed could then decide to appeal it to the court. If all fines have to require a level of prosecution, does this not create an unnecessary delay, particularly for low to mid-level orders of fines or sanctions rather than for the very high level the Minister of State has just outlined?
I hear the Deputy's case. It is the gravity, when compared to the Residential Tenancies Board, in the context of someone earning a livelihood and potentially, their reputation. There is a higher threshold to be looked at in going for a prosecution, as opposed to making a fine. It is a more significant issue. We can look more into this and I can commit to having another look at it with the officials and perhaps checking with the Attorney General's office about it again. I can see, however, that the gravity is very different in terms of the two instances..
Absolutely. I will outline the only reason I would encourage the Minister of State to look at it. Let us go back to the discussion we had earlier about the building control amendment regulations, BCAR. The maximum fine for a breach of BCAR is €5,000. It might be €10,000 but from memory, I believe it is €5,000. That is lower than some of the upper ends of the Residential Tenancies Board fines, for example for landlords not adequately addressing the issue of antisocial behaviour and criminal activity of their tenants. We have seen a range of such fines of €15,000 to €20,000 imposed by the board without recourse to the courts. That can be quite a stiff penalty. If a person is a sole trader and out doing dodgy extensions for people, the idea of getting hit with a fine of €10,000 or €20,000 just on foot of a decision by the board, could be a much nimbler instrument then a formal court prosecution. I am not in any way arguing that the board should be allowed to impose fines of €500,000. That should be in the courts. One of the weaknesses of this section of the Bill is that there is not enough flexibility in some of the sanctions that could be applied. I ask the Minister of State to consider this.
The Minister of State has said that he will consider that. Before we move on to the plumbers and heating ventilation issue, I will deal with this amendment first. Deputy McAuliffe wanted to come in also.
I am happy to deal with that issue under amendment No. 49 also, as Deputy Cian O'Callaghan has raised it.
The point raised by the Minister of State and Deputy Ó Broin is about the balance that needs to be struck here. The difficulty is that we are dealing with such a broad range of suppliers, from very small operators and specialist operators right up to larger providers. I absolutely hear what the Minister of State has said about the level of sanction. I would want that to be a court proceeding. I also hear what Deputy Ó Broin has said about wanting to give the legislation teeth and making sure it is doing what all of us in the room want it to do. A key issue is how it interacts with other regulations.
Deputy Cian O'Callaghan has raised the issue of the submissions many Deputies have received from the Heating and Plumbing Association of Ireland. They are an example of suppliers that provide both labour and materials. They are subject to their own specialist registered employment agreement. It is recognised that there is a difference between what they do and what many other suppliers in the construction industry do. This is recognised by the different registered employment agreement.
There is a balance to be achieved in what the Minister of State and Deputy Ó Broin are playing out here in front of us. Some of those mechanical contractors are registered with a whole range of different regulatory bodies, for example the gas installer in a planned extension may be registered with the Oil Firing Technical Association, OFTEC, or the Register of Gas Installers of Ireland, RGII. There are a range of different regulatory bodies. For smaller and specialist type providers we must ensure that we get this balance right. Perhaps the solution is under section 4(b). Deputy O'Callaghan had said the issue was raised after the amendments deadline had closed. Perhaps, rather than changing the argument that the Minister is making, it would be better to go back to change the definition in section 4(b) where gas works refers more to mechanical building services instead. Given that we are past the deadline, however, perhaps the Seanad could deal with this. It is a good example of how we need to be careful about getting that balance, which both the Minister of State and Deputy Ó Broin rightly argue for.
Even though it does not neatly fit into this Stage, as both Deputies have mentioned it, I will highlight the fact that I may bring forward an amendment on Report Stage. The specific issue relating to the Heating and Plumbing Association of Ireland highlights the situation whereby contractors are required to register with two separate bodies, that is, with the RGII and with this proposed register. There may be plumbers for example who, for the purposes of installing a gas boilers, must be registered with RGII, as a legal requirement-----
And for the installation of heat pumps.
Exactly. But for other works they might have to be registered with this proposed register. It might be valuable, in advance of Report Stage, for the Minister of State to consider that matter as raised by Deputy O'Callaghan to see if it is appropriate for people to be registered with two different bodies. How do we make sure we are not putting an undue burden on people and particularly onto sole traders? Obviously it is right that they should be registered and held to account. I will flag now that I may come back to this on Report Stage.
Absolutely. We all received the correspondence from that group. The committee will forward on this correspondence to the Minister of State.
That is okay. If it is RGII, they are exempt, or anything that is already covered by the building control regulations.
For that category of works yes, but one could have one contractor-----
We will have a look at the submission if the committee would like to pass it on. I just want to make the point that they are exempt, notwithstanding what we are saying.
This is an important point. They are exempt-----
I understand the point the Deputy is making, absolutely.
Let me make it first, just to make sure that the Minister of State understands it-----
For the third time.
This is a point I have not made before. They are exempt for the purposes of the category of works that they are registered for with the RGII.
Absolutely. I understand that.
But they are not exempt for all other categories of works, which could include works that are connected to the works that are categorised under the RGII.
We must also be careful in the scope of the protections we are offering.
I agree.
We are talking about exact definitions and everything here. In one sense, in respect of what the Deputy is asking me to do, this is very different from the other set. We have to be careful. I will take a look at the submission and I have committed to doing that.
I am not speaking for others but I believe they might agree. We are not asking for anything other than the Minister of State to look at the issue.
We are not making a recommendation as to how he deals with it because we want to make sure everybody is fully registered.
Does Deputy O'Callaghan wish to withdraw amendment No. 44 based on the Minister of State's response?
I will look at the submission and come back to the Deputy on it.
The submission is about other issues but in terms of my-----
About the fines.
We also said we would look at that.
On that basis, I am happy to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment No. 45 not moved.
Section 49 agreed to.
Sections 50 to 52, inclusive, agreed to.
SECTION 53
Question proposed: "That section 53 stand part of the Bill".
The purpose of opposing the section is to give me an opportunity to ask the Minister of State to clarify an element of this section. Section 53 relates to the application to the High Court to confirm a decision to impose a major sanction so we are saying a major sanction is to be imposed or is recommended by the board. A person against whom that sanction has been applied does not appeal it and does not appeal it to the courts so he or she has had two opportunities to challenge it. In that instance, the board still has to proceed for a court confirmation of the sanction. I have no difficulty with the idea of a court confirmation of the sanction but would it not be better to place the responsibility on the person or entity who is being sanctioned to take that case and challenge the decision in the courts rather than the responsibility falling on the board and, ultimately, on the taxpayer? If I was a company or sole trader and the board imposed a very heavy sanction, of course I am going to challenge it but if I do not challenge it, surely then there is an argument to say that for the board to go to the courts is not necessary. I will not press this very strongly but I am interested to understand why even where the sanctioned entity does not appeal it to the court, the board still has to go to court. Does the Minister of State see what I am asking?
I received very clear advice from the Office of the Attorney General about this, which I understand has been shared. The Attorney General has advised that the application to the High Court for confirmation of sanctions is required in order to ensure the constitutionality of the regime as it makes clear that the registration body is not administering justice in contravention of Article 34 of the Constitution. Rather it is exercising a limited function in accordance with Article 37, which is consistent with the Supreme Court decision of Zalewski of last year. I, therefore, oppose the deletion of this section.
I will make one final comment. I would hazard a guess that if this Attorney General had been in office when the Residential Tenancies Act was being drafted and passed, the same argument would have been made and it is an entirely legitimate legal argument. What the Minister of State is really saying is that it is not the severity of the fine that is the issue. Any fine would fall foul of the Zalewski judgment in the view of this Attorney General because this Attorney General is against any form of administrative justice, so it is not about administrative justice at a certain point of scale. Rather it is about any administrative justice. The only reason I want to put this on the record is that it does relate to the issue of fines. I suspect that if the Minister of State has a chat with the Attorney General and asks him whether we can have some level of fine, the Minister of State will probably find the same argument coming back, namely, that the determination of issues of justice shall be for the courts. However, there are many areas where certain levels of administrative justice are permissible under the Constitution and this is one case where I think it would be valuable. I just wanted to make that point. I will withdraw my opposition to the section and allow it to proceed but it is an important point to be considered.
Question put and agreed to.
Sections 54 and 55 agreed to.
SECTION 56
Question proposed: "That section 56 stand part of the Bill."
I ask the Minister of State to explain the rationale behind this section.
This section regarding absolute privilege is a standard provision to be found throughout the Statute Book. It is used to protect persons against defamation. In this Bill, it provides a defence for someone who makes a complaint to the registration body regarding a registered person. It also protects the board, appeals committee and inspectors in a similar manner.
I can see the advantage of it. My concern is probably around absolute privilege. What limitations does this impose? Does it have to be worded that way? I understand completely why there should be protection for people. I think that is right. I just have concerns around absolute privilege. Does it have to go that far?
My advice is that this is a standard provision found throughout the Statute Book.
I am happy enough so I will not oppose the section.
Question put and agreed to.
SECTION 57
I move amendment No. 46:
In page 58, lines 31 and 32, to delete “not exceeding the fee specified under section 34(2)(g)”.
This concerns what happens when someone is removed from the register and reapplies. This part of the Bill states that the board will set a fee that will not exceed the standard fees of registration. On face value, this seems fair enough. The issue though is there could be considerable cost for the board in terms of taking action against people who are suspended from the register for a while. Their actions or failings create costs for the board. Under this provision, those costs will, therefore, be paid by all the people who have been compliant. They will carry the costs because the board will not be able to set a higher fee for someone to re-register to get back on to the register following a suspension. It is not that the board should have to set a higher fee but I would like a situation where it could set a higher fee to effectively recover some of its costs for dealing with people who are not being compliant. This provision means that the fees paid by compliant builders and traders who never end up having compliance issues with the board will have to be increased to cover the cost of dealing with the non-compliant entities and individuals. That wording is placing a prohibition that is not necessary. It does not provide the board with flexibility so that if it wants to set a higher fee, it can do so. There is a penalty element to it but it is really a justice element. Those who are non-compliant should have to bear some of the cost of non-compliance rather than all the compliant traders and builders.
While I can understand the Deputy's intention, I do not think punishing someone is the correct mechanism. The sanctions in the Bill are very clear. Somebody who is non-compliant can be fined. When there is a register of competence, if there is a different charging policy for entry to that register, it could cast a shadow on some members. On the register, someone will either be competent or not competent. That is black and white. Having a different charging policy complicates that because the other part of the Bill is in direct response to those who are not in compliance and appropriate sanctions should be applied in that part.
I agree that sanctions should be elsewhere. This is about whether we effectively punish the compliant people by making them carry the cost of the non-compliant. In a way, there is a bit of a shadow cast because the board may attach conditions as it sees fit.
This is what the section allows for. There is already the very fact that the person or entity has been removed from the register or been suspended, so there is a bit of a shadow cast. It is just that particular wording about not exceeding the fee specified under section 34(2)(g), which means that if the board wishes to recover the costs of removing them, putting them back and all the work that goes with it, this does not allow it recover the cost by setting a higher fee. Therefore, the costs are spread among all the compliant people and entities on the register. That is an injustice to those who are compliant.
I take the point absolutely that the main sanctions should be dealt with elsewhere but this is just about fairness with registration costs. There should be flexibility for the board to ensure those incurring the most costs through non-compliance must make a further contribution.
Amendment put:
The Committee divided: Tá, 6; Níl, 2.
Tá
- Burke, Peter.
- Duffy, Francis Noel.
- Flaherty, Joe.
- Higgins, Emer.
- Matthews, Steven.
- McAuliffe, Paul.
Níl
- O'Callaghan, Cian.
- Ó Broin, Eoin.
Amendment declared .
Section 57 agreed to.
SECTION 58
Amendments Nos. 47 to 49, inclusive, are related. Amendment No. 48 is a physical alternative to amendment No. 47. We will take amendments Nos. 47 to 49, inclusive, together.
I move amendment No. 47:
In page 59, lines 13 to 16, to delete all words from and including “(1) The” in line 13 down to and including line 16 and substitute the following:
“(1) The registration body shall publish a decision confirmed or given by the High Court under section 52 or 53, or a conviction under section 60.”.
Amendments Nos. 47 and 48 are different but they are trying to achieve the same aim. This effectively means the registration body would publish particulars in terms of sanctions and convictions in whatever form and manner it sees fit with respect to decisions confirmed or given by the High Court. I do not see why these would not be published or why there would be discretion in it. Why would it be left to where people see it is in the public interest? I would have thought it is in the public interest to do this in all circumstances, given the gravity of the matters coming before the High Court and how they relate to building. I look forward to hearing the Minister of State's comments.
It is a similar point. Section 58 deals with publication of sanctions and convictions. Subsection (1) indicates that, "The registration body, where satisfied that it is in the public interest to do so," but I would have thought that any sanction or conviction of any construction industry professional is in the public interest to be known. It seems self-evident. I cannot think of any circumstances where a sanction or conviction would not be published. My question to the Minister of State is very specific. In what set of circumstances would it not be appropriate to publish sanctions or convictions against a registered entity?
I will address amendment Nos. 47 and 49 as tabled by Deputy Cian O’Callaghan and amendment No. 48 as jointly tabled by Deputies Eoin Ó Broin and Thomas Gould. I agree with the policy intention of amendments Nos. 47 and 48. It is reasonable that any decisions confirmed by the High Court or any convictions should be published by the registration body. I will review this section with the intention of consulting our legal drafters and bringing forward an amendment to reflect this position on Report Stage.
On the proposed amendment No. 49, the Bill provides that where a registered person receives two or more minor sanctions within a period of three years, the registration body shall publish these. The publication of all minor sanctions would be disproportionate, as a minor sanction means advice, a caution or a combination of these. Therefore, I cannot accept the amendment.
I thank the Minister of State for his response to those amendments and to the earlier two amendments. Regarding amendment No. 49, I was particularly struck by the three-year period. I accept that sanctions could be imposed for minor matters. A registered person could receive successive sanctions spanning a number of years which would end up not being published. If someone has received successive sanctions, that is the type of information to which people would like to have access. I would raise that limitation in particular, given there is already a threshold in terms of complaints being made, investigated and resulting in minor sanctions. While a few minor sanctions might accrue over a few years, there could be many more issues behind those that have not resulted in minor sanctions. The three-year period could be viewed as wiping the slate clean, as such. What is the Minister of State’s view on that?
I can see where the Deputy is coming from. I do not want to be disproportionate when potentially we could be talking about advice or something very minor. That is what we are reflecting in this section. That is my concern. Obviously, there is no precedent for this in terms of the three-year period, but the genesis of our approach is that we do not wish to be disproportionate if an advisory warning has been issued, as in section 8(d)(a).
I appreciate that people who sign up to a voluntary register are more likely to be compliant. Our understanding is that with the current voluntary register, there have been no sanctions imposed of any sort, minor or otherwise. Is that the case?
I am not aware of any. It is not a statutory register.
It is hard to create an equivalence.
Deputy Ó Broin indicated.
The Minister of State has raised the bar regarding expectations for Report Stage with his willingness to look at the two earlier amendments. I acknowledge his flexibility on that, which is very welcome. As he said, advice is included in the list of minor sanctions in section 8 and he makes a reasonable point on that. It can also mean a reprimand, a caution or a combination of those. What happens if a contractor receives a series of reprimands or cautions? "Prime Time" did a significant piece of reportage on an individual trader who does home extensions and has left a trail of devastation behind him. It may be that a registered person has received a series of reprimands or cautions but the cumulative impact of those would be relevant to somebody considering whether this is the kind of trader he or she wants to contract to carry out works. My understanding is that the Residential Tenancies Board publishes all determinations, good, bad or indifferent and serious or light, and these are a matter of public record. I know the Minister of State will look at this but I urge him to also consider Deputy O'Callaghan's amendment.
To return to a point we made at the start of the meeting, one of the great values of a statutory register, notwithstanding some of the fundamental weaknesses in this Bill, is that it protects the good traders and contractors and helps to clean up the industry. For too long, as we know, it has been negatively affected by a portion of contractors, both legal companies and individual sole traders, who have behaved recklessly. To ensure the maximum level of public confidence is restored, everything should be published. It would then be up to individuals to decide if they want to take on somebody. For example, if Deputy O'Callaghan and I were both contractors and the Minister of State was deciding which of us to choose to do his home extension, and I had a litany of minor sanctions but Deputy O'Callaghan's record was a clean as a whistle, who would the Minister of State choose? I would prefer him to know that I had received all those sanctions or reprimands and Deputy O'Callaghan had done nothing wrong. I urge the Minister of Sate to consider that in the context of his examination of the two earlier amendments. Perhaps a balance can be found where some information is published. My preference, like that of Deputy O'Callaghan, is that all of it would be published. Consumers should have the right to know, even if I have a long list of minor infractions, because the other trader in this case, Deputy O'Callaghan, has no infractions. The public should be entitled to know that and to choose him over me. That protects him on the basis that he complies with all the rules and it also forces me to get my act together and avoid future infractions, even if they are minor.
The Minister of State has just been asked to consider the matter. I understand Deputy O'Callaghan will withdraw amendment No. 47 because the Minister will come back to the issue on Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 48:
In page 59, line 13, to delete “, where satisfied that it is in the public interest to do so,”.
Is amendment No. 48 also being withdrawn?
I will withdraw it but reserve the right to reintroduce it on Report Stage.
Amendment, by leave withdrawn.
I move amendment No. 49:
In page 59, to delete lines 17 to 21 and substitute the following:
“(2) Where a registered person receives a minor sanction(s), the registration body shall publish the decisions of the Board or appeals committee imposing or upholding imposition of the minor sanction(s) on the registered person under section 49(2)(a) or section 50.”
Is the Deputy pressing the amendment?
Members should be aware that some of these could be dealt with in the Seanad depending on the timelines.
We know that. Will the Minister of State also consider the points we made with respect to amendment No. 49?
Absolutely.
I am happy to withdraw the amendment on that basis.
Amendment, by leave, withdrawn.
Section 58 agreed to.
SECTION 59
I move amendment No. 50:
In page 59, line 26, to delete “12 months” and substitute “4 months”.
I will withdraw the amendment.
Amendment, by leave, withdrawn.
Section 59 agreed to.
Sections 60 to 62, inclusive, agreed to.
SECTION 63
Question proposed: "That section 63 stand part of the Bill."
Section 63 is opposed by Deputies Ó Broin and Gould. Does Deputy Ó Broin wish to speak to the section.
Yes, briefly. This is an opportunity for the Minister of State to clarify the provisions of section 63, in which case I may be happy to withdraw our opposition to the section. Section 63 deals with the relationship between investigation and criminal proceedings. Subsection (1) states:
If a sanction is imposed on a person under section 49(2) or sections 50, 52 or 53, as the case may be, and the improper conduct in respect of which the sanction is imposed is an offence under this Act, the person is not liable to criminal proceedings for the offence in respect of the matter concerned.
Will the Minister of State fully explain what the implications of that final clause are? When a complaint is made against a registered contractor, an investigation takes place, a sanction is issued and that sanction is then be confirmed in the courts. Is it the case, however, that neither the board nor a third party could instigate any criminal proceedings with respect to the same matter on foot of that court decision? If that is the case, particularly with respect to third parties, not with respect to the board which has done its work and a sanction has been imposed, that a third party, for example, the homebuyer who has bought a defective home, would not be able to instigate any legal proceedings or seek any criminal proceedings for damages? I may have misunderstood this. How widely is double jeopardy being applied and for what reason?
I must oppose the proposal to delete section 63. This section provides that a person who is sanctioned under the Bill cannot be liable to prosecution for the same behaviour. It also provides that an acknowledgement of infringement during the course of an investigation is not admissible in criminal proceedings except in certain instances. Section 63 does not prohibit the building control authorities from taking a prosecution against a builder who may have sanctions imposed on him or her under this legislation. I want to be very clear about the purpose of the Bill. It is essentially a register of competence. Failures to comply with building regulations or fire safety regulations will continue to be dealt with by the building control authorities.
I will respond for the purpose of teasing this out. This section is very clear. I refer to the lengthy discussion we had earlier on the interrelationship between failure to comply building control regulations and non-compliance with the competency requirements of the register. If, for example, builder A has been subject to building enforcement by a planning authority and that is used as evidence in a sanction to question the competence of the registered person as per the register criteria, and the builder is then struck off, would that prohibit the building control authority or a third party - the affected homeowner - from pursuing further criminal action against the builder? I am trying to understand the interrelationship between the two potential decisions. The decision to strike somebody off the register is on the limited grounds that the person has not complied with the competency criteria. My understanding is that this section would not in any way prevent a building control authority or a third party affected from pursuing criminal proceedings for breach of building control regulations, even if those breaches were part of the evidence to make the case that non-compliance with the competency elements of the register was at stake.
Am I clear in that?
It does not stop action under the Building Control Acts.
It does not in any way.
It would only prevent criminal proceedings under the provisions of this Act with respect to competence.
Correct. Absolutely.
It would not under any set of circumstances prevent any criminal prosecutions under the Building Control Acts.
What is the purpose of it here, just so we are clear?
What does the Deputy mean by "purpose"? As I said, the purpose is very clearly on competence. An issue cannot be followed through the courts by a third party on competence when a determination and sanction has been made.
This is explicitly about limiting the scope of third parties to take criminal proceedings on competence.
Yes.
What about using a decision of the board-----
When it has made a determination and a sanction.
It would be if it was tried to use that in evidence in third party criminal proceedings in the courts.
Correct.
Why would that be done? I understand what is being done but why is it being done?
It relates to competence. If it is something affecting homeowners, it is under a different Act. Defective work comes under the Building Control Act. It is separate.
Sure. I understand that but I am inviting the Minister of State to convince me of the merits of the section. Why would we want to limit the ability of a third party to take criminal proceedings against somebody from a competence perspective? Is it just because the board has made a decision and it is a case of double jeopardy?
It relates to competence for carrying out works, which is separate when we speak about infringements under building control.
That is my point. I get that.
It also relates to where a party carries out work in an area it is not registered for.
Is it simply a case that we are saying the board has dealt with this matter ultimately through the courts, so somebody else should not be able to prosecute the same offence a second time?
Absolutely.
It is a clear case of double jeopardy. Okay. A decision on competence could be relevant in terms of evidence to a building control case taken by a local authority. Why would we prohibit the local authority-----
It can have its own investigations for that.
I know but if the body has done some pretty good investigations and it has led to a serious sanction, such as somebody being struck off, for example, depending on the legal advice on the building control, it should be admissible in court.
It is not compliance with building regulations that is being adjudicated on but competence.
I get that.
The compliance would relate to the Building Control Act, which is completely separate. The due diligence and evidence would have to be based on that as well.
I accept all that. If, as part of the process, the authority can refer back to a decision by the registration board that somebody was struck off for non-compliance with competency regulations, it could be materially relevant in a building control case by a local authority.
The adjudication on non-compliance would be through the Building Control Act and not this Act. Therefore, it would not be relevant. A fresh investigation would have to be done and the adjudication would be done under the appropriate jurisdiction, as opposed to the competence element of this Bill.
I accept all that but surely the relevance of a determination and sanction under this Act to a building control case should be a matter for a judge. The Minister of State is legally proscribing that, if I understand the section properly, from being used in such a case.
My advice is that non-compliance with the Building Control Act must be investigated under that Act in the first instance.
I understand that.
Due diligence must be gone through in bringing forward such a case. It is totally separate and we cannot conflate the two elements. We are speaking about competence in this Bill.
I will question it one last time but then I will leave it. I fully understand all of that. A building control authority that has done an investigation on whether a contractor has breached building control regulations etc. and is presenting the case legally to a judge may also want to refer as supporting substantive evidence to the details, information and determination of the board.
It would be looking for support under legislation that is not relevant to a prosecution.
It is.
If somebody is to be prosecuted under the Building Control Act, he or she is being prosecuted with regard to the defects in work carried out. This is not relevant to competence under this register. It is a separate determination. A party would have to investigate and adjudicate on the other matter under the Building Control Act.
I would prefer a judge to decide if it is relevant. I hear the argument.
Question put: "That section 63 stand part of the Bill".
The Committee divided: Tá, 6; Níl, 2.
Tá
- Burke, Peter.
- Duffy, Francis Noel.
- Flaherty, Joe.
- Higgins, Emer.
- Matthews, Steven.
- McAuliffe, Paul.
Níl
- O'Callaghan, Cian.
- Ó Broin, Eoin.
Question declared carried.
Sections 64 and 65 agreed to.
Schedule 1 agreed to.
SCHEDULE 2
I move amendment No. 51:
In page 65, line 33, to delete "serious".
There is no need for people to stay in the room unless they want to. This relates to removal of members of the board or the appeals committee and the grounds for that. Why would it not be grounds for appeal where a board member or member of the appeals committee engaged in misconduct? Why does it have to be serious misconduct? What is the definition or threshold for serious misconduct as opposed to misconduct? Why would "misconduct" not be sufficient grounds? This relates to grounds for removal and it does not mean that because a board member or member of the appeals committee is engaged in misconduct, they must be removed. Will the Minister of State explain that?
This section of Schedule 2 of the Bill concerns the removal from office by the Minister of a board or appeals committee member. The grounds include that a member has engaged in "serious" misconduct and the amendment proposes to delete "serious". We are opposing the amendment as it is important that the independence of the board and appeals committee is maintained and that the Minister should have a serious reason for removing a member from office. It is subjective but the Attorney General and the Office of the Parliamentary Counsel have already put forward the word "serious" for use. I am not a legal expert and we can argue at length about "serious" as we did about public morality or whatever.
I am happy with that explanation in respect of the definitions around it and that these are just standard terms.
Amendment, by leave, withdrawn.
Schedule 2 agreed to.
Title agreed to.
With the leave of the Cathaoirleach, there are a small number of matters I wish to raise that we may be bringing as amendments on Report Stage in other areas that were not referred to already.
In addition to these Parts, the Government intends to bring forward amendments to allow for the sharing of information by other regulatory authorities on enforcement and prosecutions with the registration body.
Section 34 of the Bill provides that an applicant shall furnish information to the board in respect of certain convictions or orders under the Building Control Act 1990, the Safety, Health and Welfare at Work Act 2005, the Fire Services Act 1981, or certain environmental legislation.
Section 26 of the Bill provides that the register shall contain such information in order that the registration body can be satisfied that it processes all of this information and I intend to bring forward amendments to allow for this data sharing.
We will also bring forward amendments on data processing and governance. These will be in line with the Data Protection Act 2018 and the Data Sharing and Governance Act 2019.
In addition, we will bring forward a number of administrative amendments to the Building Control Act 2007 which provide for the statutory register for architects, building surveyors and quantity surveyors. These amendments are the introduction of a requirement for mandatory maintenance of continuous professional development and for the amending of section 71(5)(a) of the Act to allow the professional conduct committee to operate with a quorum of five instead of six. This will allow the committee to hear more than one inquiry at a time and will also help address the anomaly which permits the same members of the committee to consider the complaint at investigation stage and to also consider it at inquiry stage.
We intend to amend the Act to remove the requirement to send two notices by registered post before removing a registered professional from a register for non-payment of fees, which will be replaced by one notice by registered post and one by electronic means.
We intend to further amend the Act to clarify where the professional conduct committee is of the opinion that there are no prima facie cases established and where there should be no further proceedings.
We intend to amend the Act to change the title of the registration body for surveyors because when the Act was drafted and enacted the title of SCSI, the Society of Chartered Surveyors Ireland, was the Society of Chartered Surveyors. The Society of Chartered Surveyors and the Irish Auctioneers and Valuers Institute merged in 2011 and the title of the merged organisation was amended to the Society of Chartered Surveyors Ireland.
It is also intended to amend the sections of the Act in respect of surveyors to replace the word "associate" with "professional member".
I am just flagging those issues for Report Stage.
I thank the Minister of State and ask that the members be circulated with these details also.
Absolutely, as I just wanted to put these matters on the record in the first instance.
Bill reported with amendments.