Amendments Nos. 124 and 125 are related and may be discussed together.
SECTION 36.
I move amendment No. 124:
In page 31, lines 14 and 15, to delete "he shall take no part in a discussion by the Authority, committee or consultative group, of the matter" and substitute "he shall withdraw from the meeting for so long as the matter is being discussed or considered by the Authority, committee or consultative group".
This amendment ensures that persons who may have a beneficial interest in any matter being discussed or considered at a meeting of the Authority or any of their committees or consultative groups are specifically excluded from attendance while the matter is being dealt with. The Bill, as drafted, simply provided that they would not participate, it did not require them to leave the meeting. This amendment makes the section consistent with the provisions of the Environment Protection Agency Act and will ensure that no allegation or perception of a conflict of interest will arise. My proposal goes somewhat further than Deputy Yates' amendment.
It is important that everything is above board and that it is seen to be so. The best way to achieve this is to require persons with a potential conflict of interest to withdraw from any meeting at which the matter is considered.
I welcome this amendment. It was a defect in the Bill that board members could be present at a meeting where they had a direct beneficial interest in a matter being discussed or considered. I agree that the words "shall withdraw" are more appropriate than the words, "not be present".
Amendment agreed to.
Amendment No. 125 not moved.
I move amendment No. 126:
In page 31, subsection (2) (a), line 21, after "he," to insert "his spouse,".
This amendment relates to the disclosure of interests, where conflict of interest may arise. It is possible for someone's spouse to transact business on their behalf. This amendment tightens up the provision in that regard.
The word "household" will normally include not only the spouse but also children and that is the advice I have on the draft of this section from the parliamentary draftsman, but I am prepared to have a look at the word "spouse" and raise it again with the parliamentary draftsman. It may be that this review will not result in any change, but I am prepared to raise the issue.
Amendment, by leave, withdrawn.
Amendment No. 127 is related to amendment No. 129 and they may be discussed together.
I move amendment No. 127:
In page 32, subsection (6), line 1, to delete "knowingly".
I propose to accept Deputy Yates' amendment which seeks to delete the word "knowingly" of the word from subsection (6) and amendment No. 129 proposes the inclusion of a new subsection (7) to provide for a a good defence. The deletion of "knowingly" alone would impose too strict an obligation as to the disclosure of interests and could lead to the conviction of somebody who, through an oversight alone and without malice or intent to deceive, fails to disclose an interest. Instead, I propose to transfer the burden of proof to the defendant. It will be up to him or her to satisfy the court that he or she did not know or had no reason to believe that he or she had an interest which could have been declared at the time a particular matter was being considered. This approach represents a fair balance and is in the overall interests of justice. It also follows the approach adopted in relation to An Bord Pleanála.
Amendment agreed to.
I move amendment No. 128:
In page 32, subsection (6), line 2, after "offence" to insert "and shall immediately cease to hold their membership of, or employment by, the authority".
This amendment relates to a person who is guilty of an offence as outlined in the Schedule. It should be implicit in the Bill that such a person should cease to hold his or her position and, being mindful of recent events in Greencore, we must be specific about this.
And one other place.
Yes, and it is important that we specify that they should be dismissed.
I do not propose to accept this amendment.
Section 36 is modelled closely on existing established provisions contained in such Acts as the Local Government (Planning and Development) Act, 1976 which set up An Bord Pleanála and also in the newly enacted Environmental Protection Agency Act. I do not propose to introduce automatic dismissal for members and employees of the National Roads Authority. The National Roads Authority will be able to dismiss any of their employees appointed under section 30 if they see fit, subject to any contract of employment and, of course, recourse to any statutory employment protection requirements. Under section 28 the Minister may dismiss any National Roads Authority board member who has committed stated misbehaviour. Under section 29 he may dismiss the first chief executive for stated reasons and the Authority will have the same power in relation to subsequent chief executives. Any civil servant transferred to the National Roads Authority or providing services to them may be dismissed by the Government in accordance with normal procedures.
I see no need for further new provisions in this area. The offence itself potentially carries very heavy penalties: up to two years in jail and possibly a £10,000 fine. I also believe we should be careful when considering mandatory sanctions of the type proposed in the amendment. There may always be a case where their application would be unjust and for that reason I do not favour the amendment.
I take the Minister's point. Section 36 (6) states: "A person . . . shall be guilty of an offence". I assume that a person would automatically cease to hold their position, in other words, would be fired, if they were found guilty of an offence, that it would not be a case of the jury being out, as it were. I withdraw the amendment on the basis that if someone is guilty of an offence they will be fired.
Amendment, by leave, withdrawn.
I move amendment No. 129:
In page 32, between lines 2 and 3, to insert the following subsection:
"(7) In any proceedings for an offence under this section it shall be a defence for the defendant to prove that at the time of the alleged offence he did not know and had no reason to believe that a matter in which, or in relation to which, he had a beneficial interest had fallen to be considered by him, by the Authority, or by a committee or consultative group established by the Authority, as the case may be, or that the beneficial interest to which the alleged offence relates was one in relation to which a requirement of this section applied.".
Amendment agreed to.
Section 36, as amended, agreed to.
Sections 37 and 38 agreed to.
NEW SECTION.
We now come to amendment No. 130; amendment No. 187 is consequential and they may be discussed together.
I move amendment No. 130:
In page 32, before section 39, to insert the following new section:
39.—(1) It shall be the duty of a person to whom this section applies to give to the Authority a declaration in the prescribed form, signed by him, and containing particulars of every interest of his which is an interest to which this section applies and for so long as he continues to be a person to whom this section applies it shall be his duty, where there is a change regarding any such interest or where he acquires any other interest to which this section applies, to give to the Authority a new declaration in the prescribed form.
(2) (a) This section applies to—
(i) a member of the Authority,
(ii) a member of a committee performing a function delegated to it by the Authority, and
(iii) an employee of the Authority or a person whose services are provided to the Authority under section 32 where such employee or person is of a class, description or grade prescribed for the purpose of this section.
(b) This section applies to the following interests—
(i) any estate or interest which a person to whom this section applies has in any land or in any activity,
(ii) any business of dealing in or developing land, or any activity, in which such a person is engaged or employed and any such business carried on by a company or other body of which he, or any nominee of his, is a member,
(iii) any profession, business or occupation in which such a person is engaged, whether on his own behalf or otherwise, and which relates to dealing in or developing land or to any activity.
(3) A person to whom this section applies and who has an interest to which this section applies shall be regarded as complying with the requirements of subsection (1) if, and only if, he gives to the Authority a declaration mentioned in that subsection within the period of twenty-eight days beginning—
(a) in case the person is such a person on the commencement of this section — on such commencement,
(b) in case the person becomes such a person after the commencement of this section — on the day on which he becomes such a person,
(c) in case there is a change regarding an interest particulars of which are contained in a declaration already given by the person or where the person acquires any other interest to which this section applies — on the day on which the change occurs or the other such interest is acquired.
(4) For the purposes of this section, a person shall be regarded as having an estate or interest in land or an activity if he, or any nominee of his, is a member of a company or other body which has an estate or interest in the land or the activity.
(5) For the purposes of this section, a person shall not be regarded as having an interest to which this section applies if the interest is so remote or insignificant that it cannot reasonably be regarded as likely to influence a person in considering or discussing, or in voting on, any question with respect to any matter arising or coming before the Authority or a committee of the Authority, or in performing any function in relation to any such matter.
(6) Where a person to whom this section applies has an interest to which this section applies by reason only of the beneficial ownership of shares in a company or other body by him or by his nominee and the total nominal value of those shares does not exceed the lesser of—
(a) one thousand pounds, or
(b) one-hundredth part of the total nominal value of either the issued share capital of the company or body, or where that capital is issued in shares of more than one class, the issued share capital of the class or classes of shares in which he has an interest,
subsection (1) shall not have effect in relation to that interest.
(7) The Authority shall for the purposes of this section keep a register (which register is in this section referred to as the register of interests) and shall enter therein the particulars contained in declarations given to the Authority under this section.
(8) The register of interests shall be available for inspection by any person at the Authority's headquarters during office hours and a copy of the register or any entry in the register may be obtained by any person on the payment to the Authority of such fee (if any) as the Authority shall fix not exceeding the reasonable cost of making a copy.
(9) Where a person ceases to be a person to whom this section applies, any particulars entered in the register of interests as a result of a declaration being given by the person to the Authority under this section shall be removed, as soon as may be after the expiration of the period of five years beginning on the day on which the person ceases to be such a person, from the said register by the Authority.
(10) Subject to subsection (11), a person who fails to comply with subsection (1) or who, when purporting to comply with the requirements of the said subsection (1), gives particulars which are false or which to his knowledge are misleading in a material respect, shall be guilty of an offence.
(11) In any proceedings for an offence under this section it shall be a defence for the defendant to prove that at the relevant time he believed, in good faith and upon reasonable grounds, that—
(a) the relevant particulars were true,
(b) there was no matter as regards which he was then required to make a declaration under subsection (1), or
(c) the matter in relation to which the offence is alleged was not one as regards which he was so required to make such declaration.
(12) In this section "activity" means—
(a) the provision of consultancy services in relation to road construction or maintenance,
(b) the carrying out or the management of road construction or maintenance works,
(c) the provision, manufacture or supply of equipment, plant, materials or any other thing for the purpose of road construction or maintenance,
(d) the provision to the Authority or a road authority of training, research or testing services in relation to its functions, and
(e) any other prescribed activity.
This amendment provides for a new section 39 — Declaration of interests. The new section is modelled on section 32 of the Local Government (Planning and Development) Act, 1976, which provides for declarations of interests in relation to An Bord Pleanála. A similar provision has been inserted in the Environmental Protection Agency Act. Essentially it provides that members of the Authority and committees performing functions on their behalf, as well as prescribed employees of the Authority and prescribed persons who provide services to the Authority, must have a written declaration of interest covering land, shares and other financial interests they possess. Such declarations will be entered in a register which will be available for public inspection. This wide ranging provision will ensure that the interests of the Authority's members and senior personnel are clearly visible to the public, thus ensuring that public confidence in the impartiality of the Authority's decision will be enhanced.
The purpose of amendment No. 187 is to provide penalties for offences under this new section. In common with the provisions in section 36 requiring disclosure of interest where a potential or actual conflict of interest arises for somebody considering some issue, in section 37 prohibiting the disclosure of confidential information and in section 38 prohibiting the use of improper influence, it is proposed that the following penalties will apply to the new section 39: summary conviction in the District Court, a maximum fine of £1,000 or six months in prison and on conviction following a jury trial, a maximum fine of £10,000 or three years in prison. This approach emphasises the importance attached to the making of proper declarations of interest while allowing a degree of flexibility as to the level of penalty, reflecting the seriousness of the offence.
Amendment agreed to.
SECTION 39.
I move amendment No. 130a.
In page 32, subsection (2) (a), line 44, after "functions." to insert "Where the Minister issues policy guidelines to the Authority the Minister shall publish a copy of such policy directive(s).".
I agreed last week to reconsider before Report Stage the whole question of directions. With regard to the amendment, I would have no objection to a requirement that I lay a direction before both Houses of the Oireachtas. I will return to this matter on Report Stage when I have looked at the wider issue.
I am happy to withdraw the amendment on that basis. I hope the Minister will agree to lay such directions before the Houses of the Oireachtas. On reflection of the last day's debate I am not as zealous in my view that the Minister should not give directions. I felt that there were more arguable cases for the Minister having power to make directions than there was when section 15 was originally debated. Perhaps, the Minister could leave the provision as it is. I want to repeat the point made by Deputy Gilmore about local authorities being disregarded, the Eastern by-pass and so on. If there is a panoply of powers available to the Minister to make general directions, residents groups and others who may object would have a second right of appeal.
Amendment, by leave, withdrawn.
Section 39 agreed to.
Section 40 agreed to.