Dáil Éireann díospóireacht -
Wednesday, 3 Mar 2004

Vol. 581 No. 3

Private Security Services Bill 2001: Report Stage (Resumed).

Debate resumed on amendment No. 17:

In page 10, to delete lines 1 and 2 and substitute the following:

"(a) 2 persons who are practicing barristers or practicing solicitors, of not less than 5 years’ standing, at least one of whom has a specialisation in human rights law,”.

— (Deputy Ó Snodaigh).

Aengus Ó Snodaigh

As I had almost concluded when the debate was suspended on the previous occasion, I will not labour my point. The purpose of the amendments is to ensure that the authority becomes more representative of society than is provided for in the Bill.

Amendment No. 17 provides that at least one of the two barristers or solicitors appointed to the authority should specialise in human rights law to ensure that the decisions and practices of the authority and the implementation of the legislation, when enacted, reflect best practice throughout the world and fully protect the rights of employers, employees and the public.

Amendment No. 18 proposes that the two representatives of employees be appointed by the trade unions, as the bodies which would best represent their views. In light of the wide range of areas involved, were only one person to be appointed, he or she might not reflect the views of the trade union movement or employees as a whole, whereas an organised body or bodies —several trade unions are likely to be involved —could properly represent and reflect the views of employees and allow them, through their representative bodies, the trade unions, to feed into the authority information which should be raised, discussed and thrashed out. This will be especially important in the early years of the authority given that teething problems always arise in new structures.

The purpose of amendment No. 19 is to ensure that the community and the general public have a position on the authority in the shape of a person appointed specifically to represent different views on various issues and to ensure that the authority tackles the relevant issues.

Mr. Costello

These three amendments are eminently reasonable and valuable and relate to separate areas, namely, human rights, the trade union movement and community interests. The Bill would be improved if representatives of these sectors were reflected in the composition of the authority given that it must consider a broad range of issues. This would be achieved by appointing a representative from each of these sectors to address the relevant issues.

As regards amendment No. 18, section 7(2)(c) provides that the Minister will appoint two persons each of whom he considers to be representative of employees of private security employers. The phrase “selected and recommended to the Minister by the trade union movement” is missing from the paragraph. Bearing in mind our discussions on Second and Committee Stages and our meetings with representatives of the industry and SIPTU, I assume the Minister supports the idea that the trade union movement recommend a person for appointment. I also assume that his only concern previously was that the trade union movement was not sufficiently reflective in terms of its organisation of members and that once this was rectified he would be happy to accept recommendations from trade unions.

The trade union movement has already indicated its interest in the matter to the Minister. It could be accepted as a given, even though the relevant section does not state it, that a representative recommended by the trade union movement could be a member of the authority.

Mr. Deasy

I see no reason representatives of the trade union movement should become members of the authority. I am aware of Sinn Féin and the Labour Party's ties to the trade union movement but, with all due respect, I would like to hear a logical reason trade union officials should become members of the authority.

Minister for Justice, Equality and Law Reform (Mr. McDowell)

Section 7 provides for the establishment of a broadly representative authority. A balance must be struck between representation on the one hand and effectiveness on the other. We should try to accommodate relevant interests without sacrificing such effectiveness.

Provision is made in Schedule 1 to the Bill for the establishment of advisory committees. It may be possible to accommodate certain interests on such committees depending on the subject matter. I will give close consideration to any proposals from the authority on the establishment of such committees.

On the Deputy's question, I understand SIPTU is already active in the security industry and that it has submitted a proposal in this regard. Without committing myself one way or the other, I would find it difficult to ignore the recommendation of a responsible and competent person who had the backing of a trade union which was active in this area. I would have to have a good reason to ignore such a recommendation. That is as far as I can go on this point. I agree with Deputy Deasy that this provision should not be so stitched up in terms of nominations as to make it almost impossible to move.

I point out to those interested that I am preoccupied with ensuring a gender balance on the authority. I frequently find that, when nominating interest groups have completed their nominations, they leave it up to the Minister to pick up the pieces in terms of the establishment of gender balance on bodies of this type. I ask those putting forward nominees for appointment to the authority to bear in mind that I want to establish a degree of gender equality and that they should look outside the usual stereotyped appointments and nominate people broadly reflective of the community at large.

Amendment put and declared lost.

Aengus Ó Snodaigh

I move amendmentNo. 18:

In page 10, to delete lines 5 and 6 and substitute the following:

"(c) 2 persons selected and recommended to the Minister by trade unions representing employees of such employers,”.

Amendment put and declared lost.

Amendment No. 19 not moved.

An Ceann Comhairle

Amendment No. 20 arises from committee proceedings. Amendments Nos. 21, 22 and 74 to 76, inclusive, are cognate. Amendments Nos. 20 to 22, inclusive, and 74 to 76, inclusive, may be taken together by agreement.

Mr. McDowell

I move amendment No. 20:

In page 10, line 34, after "may" to insert "for stated reasons".

It was pointed out on Committee Stage that the Minister could remove a member of the authority in certain circumstances without giving reasons for doing so. The amendments tabled in my name will ensure the Minister must state reasons whenever he or she removes a member of the authority or the appeal board. I have accepted the spirit of Deputy Costello's observations and have incorporated them into the amendments tabled in my name.

Mr. Costello

I thank the Minister for accepting my point.

Amendment agreed to.

Mr. McDowell

I move amendment No. 21:

In page 10, line 35, to delete "stated".

Amendment agreed to.

Amendment No. 22 not moved.

Mr. McDowell

I move amendment No. 23:

In page 11, lines 4 and 5, to delete "of paragraphs (a) to (f)” and substitute “paragraph”.

This is a straightforward amendment which states that a staff member on the authority ceases to be a member of the authority if and when that person ceases to be a member of the staff of the authority. It is logical that a person who is no longer a staff member could not be a member of the authority. There is nothing controversial about this amendment.

Section 7 provides for the election by secret ballot of the staff of the authority of a staff member to the authority. It is appropriate that, when a person ceases to be a member of the staff of the authority, he or she should be replaced by way of election.

Amendment agreed to.

Acting Chairman (Mr. McGinley)

Amendments Nos. 24, 25 and 70 are related and may be taken together by agreement.

Mr. Costello

I move amendment No. 24:

In page 11, to delete lines 21 to 24 and substitute the following:

"(7) At least 40 per cent of the members of the Authority (and of the Appeal Board) shall be men and at least 40 per cent shall be women.".

This amendment seeks to provide that at least 40% of the members of the authority and of the appeal board, to which there is no reference, shall be men and at least 40% shall be women. The legislation gives a nod in that direction in that it states the Minister shall have regard to the extent of which each sex is represented on its membership. That is, however, what one calls an aspiration. The legislation provides no substantial reason the Minister should take action if the nominations do not include members of either sex in reasonable proportion. The Minister indicated he would wish to create gender balance on the authority but he will not be Minister for Justice, Equality and Law Reform forever. There is no mechanism in the Bill to ensure there is fair representation of both sexes on the authority.

The industry concerned made strong representations to the effect that it did not feel it warranted or would be able to find suitable people of both sexes. It felt it would have no problem finding male members but it did not think it would be able to find suitable female members. Unless the legislation specifically requires that there be a gender balance on the authority, there is not the slightest hope it will be representative of both sexes. The gender equality issue has been around for a long time but there has been little improvement in certain areas.

It was noted recently that we are not to the fore in terms of nominations to the Council of Europe. Our delegation was deprived of its franchise and was no longer entitled to vote because it had no female members. If it is left to the device of individuals and people who are representative of the industry, it will not happen. The Minister should be more proactive in all legislation. A formula of words should be used when we are setting up authorities or appeal mechanisms, but even in section 7(7), which deals with the appeal board, there is no reference to a requirement of this nature.

I feel strongly about this issue and I may push it to a vote if the Minister is not prepared to take a tougher line to ensure a reasonable representation of both sexes, and 40% would be a reasonable representation.

Mr. Deasy

I do not believe in quotas. The 40% figure goes back to the former Minister, Mervyn Taylor, when the rainbow Government was in office. He used that figure with regard to the Civil Service but sometimes that can indicate a patronising attitude towards women. Deputy Costello made the point that the industry could not find the requisite number of women to fill these positions.

Mr. Costello

It is not that they could not find them.

Mr. Deasy

That was the indication. Deputy Costello is enforcing that by making it an absolute requirement. This section is politically correct. Year after year politicians make the point on Bills like this that there has to be a certain percentage of women on boards, but that is patronising women and it is used by politicians to curry favour with women. I do not believe in quotas. One can be a little too politically correct when it comes to these provisions.

Aengus Ó Snodaigh

I go even further than the Labour Party amendment in my amendment No. 25 which states that the authority should reflect society as a whole, which has a majority of women. We all wish that quotas were not necessary but the groups representing women or working on equality issues have always said that positive discrimination is a way of tackling years of discrimination of women. I propose a figure of 50% because at the very least the State should set a standard to which private and other companies, and society in general, could adhere.

There has been a huge change in our workforce in recent years but that is not reflected in the higher echelons of society. Women should be represented at that level. We wish that could be achieved without having to specify it in legislation but we will not have achieved it by the time this Bill is enacted. We will have the attitude displayed by the security industry which was to the effect that they would not have enough women of that calibre. We will never have a sufficient number unless we get the ball rolling and ensure that women working in the industry are given opportunities. There are not enough women in the industry and we have to discriminate positively in favour of women until their representation reaches 50% or more, which is the case in society generally. If there were more women working in the security industry it might remove the macho attitude that exists in it. What type of message does a board which is fully composed of men send out to the industry, its employees and the members of the public who have to deal with doormen, security personnel and those providing personal security to dignitaries and others in the industry on a daily basis?

At the very least the Minister should ask the Cabinet to decide on a standard for membership of these boards because every Bill which comes before the House appears to have a different formulation in that regard. One may be appointed by the Minister only and another may be appointed by the Minister and others, but none of them adhere to the 50% criterion in terms of female representation. Deputy Costello's amendment should be accepted because it states that at least 40% shall be women. If the Minister had accepted my earlier amendments we would have had an authority of 12. That would have been easy —six men and six women.

I take the point the Minister made that if all these people are appointed by people other than him it would be difficult for him to reach the quota required. If the Minister accepts this amendment, the question of appointments to the committee can be addressed and the authority could be given some formulation to ensure that would happen.

In Sinn Féin we had a facility in the past whereby our Ard Comhairle had to be made up of 33% of women and if that was not achieved by election, the Ard Comhairle numbers were expanded to ensure that figure was achieved. There are mechanisms available, therefore, and the National Women's Council could give the Minister many examples which would ensure that the 50% representation figure on the authority would be achieved.

I ask the Minister to give serious consideration to amendments Nos. 24 and 25 and to Deputy Costello's subsequent amendment No. 70 because unless the State sets down these standards, we will not set the required example for the public and thereby ensure that in the future this House will be properly representative of society. Regrettably, my party has an all-male representation in this House but I hope after the next general election the electorate will have ensured it is properly representative of society and that 50% of our TDs will be female.

Mr. McDowell

The Government's policy is that at least 40% of State board members should be women and at least 40% should be men. As Minister for equality, I am driving that policy right across the departmental horizon. The Minister of State, Deputy O'Dea, is personally charged with ensuring that Ministers take that policy seriously, and he regularly reminds us of our obligations in that regard. That policy has been remarkably successful.

The trend is very much in the right direction. Women as a percentage of the total serving membership on State boards are now at 30% and that figure increases every time there is a rotation of members. Women as a percentage of serving Government ministerial nominees are 36%. The percentage of women as "chairs", however, is much lower; it is 18%. Among the boards for which my Department has responsibility, women account for 45% of the "chair" positions. I am ahead of the norm in that respect. Deputy Costello kindly said that I might not always be the Minister, that other Ministers with less progressive views might succeed me, but there is a way around that. We could amend the Act to provide that I would be the Minister forever.

Mr. Costello

Dictator.

Mr. McDowell

Short of that amendment I think we have to be realistic.

Mr. Costello

I figured that would appeal to the Minister.

Mr. McDowell

Things are going in the right direction now. I am glad Deputy Ó Snodaigh acknowledged this spontaneously. I find it somewhat rich that people who cannot organise their own party on gender equality lines tell the Government how it should act on this matter. The Progressive Democrats said from the beginning it would have no woman's section but rather a party of total equality. Ours was the first party to be led by a woman, which is strange after 80 years of Irish independence. Our party has always had a significant number of women Deputies in its Dáil membership. At present it is 50-50. It is not good enough for Sinn Féin to say it is twiddling around with its Ard Comhairle membership and so on. If the party wants to achieve the number, it must set out to do that, and if its members when selecting candidates want to achieve it, they must go out and do so.

It may be that when a party is coming in from the cold, which has had activists who are predominantly male, it is difficult to suddenly put forward women as candidates in elections. However, Sinn Féin should take a look at the Progressive Democrats and ask how it was possible to be led by a woman and have 50% of a party's Dáil membership female. The difference is that we take it seriously. We do not posture about it. We do not make noise about it. We just go and do it. Sinn Féin should follow the Progressive Democrats' example and elect a woman leader of the party. I would like to see that. It would be good and it might improve the party.

One of the problems with a rigid formula is that if a board has just reached the 40% quota, one way or another, and somebody resigns or retires, to be told that a good successor cannot be appointed because this would be illegal is the type of inflexibility that is not needed. Suppose, for instance, that an employee representative was eminently suited and was the elected choice of members of staff and he or she resigns and has to be replaced. To tell the staff that their first choice must have to stand aside in deference to quota complexities involving the appointment of a particular male or female board member would be nonsense. I would much prefer to see policy being implemented along the lines I am driving it, which is having dramatic effects. Right across the public service the trend is rapidly moving towards equalisation.

There is a problem with the question I have just raised, which is that women represent 30% in total of board members, but as a percentage of Government ministerial appointees, they are 36%. This means that the Government is well ahead of civic society. It is civic society that is letting us down in this regard. If 36% is the Government figure it is possible to work out through some mathematical formula that civic society is down to somewhere in the mid-20% range in the making of board nominations. The problem does not lie with Government, it lies outside. In future I propose to ask bodies, that traditionally give me nominations, for a male and female nominee so that I can put together a board which is broadly reflective of society as well as the normative interests that have to be represented on it. It may be a culture change for some of the nominating and partnership bodies to be told to put up two people rather than one. It is in their court that the most pronounced problem exists as regards equality.

When I come to appoint this authority Deputies will be pleasantly surprised by the gender balance that is finally struck. I agree with Deputy Deasy that the way to achieve this is not to establish rigid quotas because it can have the extraordinary effect that someone who is the most obvious choice, in effect, for the equivalent of a by-election vacancy has to be rejected on an artificial ground. It may be that on some occasion an obvious substitute is identified and it is decided to restore the gender balance the next time a vacancy arises on the authority in question. However, the effect of a rigid legal requirement of the kind suggested would rule out such an initiative.

There are different approaches to be taken to disparate bodies, for instance, the Judiciary. My aim is to have the Judiciary broadly reflective of the legal professions from which its membership is drawn. The number of women barristers and solicitors at the lower end of the pyramid in terms of age and experience has achieved gender balance, or nearly. With the passing of time, the Judiciary will reflect the gender balance in the legal profession. The same argument applies to the legislation I am currently moving in the Seanad, the Garda Síochána Bill 2004. That Bill provides that at least one of the three members of the Garda ombudsman commission must be of either gender. One could say that with a three person commission, 40% cannot be achieved. There is bound to be a two thirds-one third weighting.

Aengus Ó Snodaigh

It might require a transexual solution.

Mr. McDowell

One of the Members of the other House volunteered for that position. It was done in good humour rather than anything else. I would remind Deputy Ó Snodaigh especially that this matter requires commitment in spirit, not in letter. It requires a determination and hunger for equality in practice, not just on paper. I believe we are going in the right direction and that this proposal would introduce an inflexibility that is inappropriate. Since staff in this model are appointing one member to the authority, they could be forced to reject their own choice because the person would be ineligible by reference to some other criterion. The best thing to do is follow the course I have suggested.

Mr. Costello

I am glad to hear that the Minister hungers for equality. Doubtless the Minister of State, Deputy O'Dea, the man who is to ensure there is equality, has the same hunger. The Progressive Democrats have succeeded admirably in this area by choosing the first female leader of any political party in this State, although the Minister will have something to say about the next leader, and 50% of its TDs are female.

I am still concerned about the situation. It is as if the Minister has inserted section 7(7) as an afterthought. Schedule 1 of the Bill states that the authority shall ensure the maintenance of an appropriate balance as between men and women in an advisory committee's membership. The Minister seeking an appropriate balance in the advisory committees is not as strong as the stipulation in section 7(7) that states that, in making appointments to the authority, the Minister shall have regard to the extent that the authority ensures the maintenance of an appropriate balance. The Minister has no role in the advisory committees so, despite his hunger for equality, he will not be asked to ensure equality in them because that will be done by the authority itself. His hunger for equality, however, can extend to the authority through the insertion of this provision into the legislation.

There is no requirement for equality or gender balance on the appeal board established under Schedule 2. The legislation does not reflect a sense of urgency about ensuring gender balance if it is not written into the Bill. If the Minister ensured that the same level of regard would extend to the advisory committee and to the appeal board as extends to the authority itself, it might go some way to achieving equality but, as it stands, there is no sense of urgency. The attitude of the industry would make it difficult to get it to arrive at reasonable gender balance on a voluntary basis.

We must move in this direction. There is a 3% disability employment requirement in the public service and that is the only reason we are making progress in that area. The glass ceiling still operates in many areas of the private sector and we are introducing legislation where the Minister has a say in the bodies that will be established to operate and monitor standards in the private security industry and we have an obligation to ensure that we are proactive in achieving equality and gender representation. Despite what the Minister has said, the legislation falls down by not attempting to achieve it. The Minister will not always be in office and, even if he were to be, the advisory committee and the appeal board leave much to be desired. There is nothing in the appeal board mechanism that requires gender balance. If it does not exist across the board, what is the point? The Minister should accept an amendment of this nature.

Mr. Deasy

I agree with the Minister that there is a need for flexibility. Strict quotas do not make sense. This is a case of politicians pandering to the women's vote, something I see repeatedly as people compete with each other to see who has the largest percentage. If we are committed to equality and gender balance, we should get on with it. Everyone has given an example so I will mention Waterford County Council. Fine Gael is running 15 candidates in the local elections, seven of whom are women, many of whom I enrolled in the party and motivated to run in the elections. Many women are offended when male politicians go on about this. The Minister is right in that we need flexibility. This smacks of pandering and political correctness.

Aengus Ó Snodaigh

I am not pandering to anyone or looking for the women's vote.

Mr. Deasy

Pandering is the Deputy's middle name.

Aengus Ó Snodaigh

It was said that anyone who tabled such amendments was pandering to the women's vote, but this is an issue in which I am interested and which I have taken seriously. The Minister is right that, within Sinn Féin, we do not have gender equality, and I admit that. We have a process in the party, however, to address the issue, including for candidates running in elections. The Progressive Democrats Party is, for once, a model which other parties should examine because it has 50:50 representation within this House. Political parties should aspire to proper representation and reflection of society. That is why we took the steps which changed the electoral procedure for the Sinn Féin Ard Chomhairle to seek to increase the number of women on it from one third to 50% of its membership.

Over time, we will not need quotas as more women become involved in politics. The majority of parties in this island and throughout the world have problems in attracting women to play a full role within politics, and we should do everything we can to facilitate them to play that full role. The Department of Justice, Equality and Law Reform has taken steps and made money available to encourage further research in this area and that is welcome.

This amendment was not tabled for the sake of it because we have acknowledged that steps are being taken and we welcome the increase in the representation of women on State boards as outlined by the Minister. We should now examine how to increase that representation and, in this initial stage, we should ensure the authority is representative. The Minister's position regarding asking for two nominations should be provided for, regardless of whether the Act stipulates a 50:50 or 40:60 gender balance.

The Minister stated that, in the Judiciary, barristers are representative of the gender of the profession. We do not want the representation based on the gender make-up in the profession, but rather in society, and membership on boards and authorities should reflect that. If the authority established by the Bill reflects the representation of women in the industry at present, only 10% of the board will be female.

Mr. McDowell

It is reasonable that the Judiciary reflects the bodies from which it may legally be drawn. It would be strange indeed if people of high quality were rejected in favour of people of lower quality because of their gender. That is not desirable and we should continue to make merit-based appointments. However, in that process, we must also put out of our minds the stereotypical approaches that occur frequently, especially in the law. When I was in practice, women barristers were not given a fair deal by solicitors as criminal advocates because it was felt that somehow men were more stereotypical criminal barristers, but that is changing, I am glad to say.

I suggest to the House that the best way to achieve progress is to implement a policy consistently rather than have the kind of situation I have mentioned whereby a vacancy occurs and one must choose someone whom one does not want in preference simply because one knows that, for 18 months, the number of women would fall below a certain quota. It is better to approach this on a flexible, holistic basis rather than with an inflexible, quota-driven system. I genuinely believe that so much progress has been made on the basis of a policy-driven equalisation strategy that we should not make the mistake of dividing things into quotas.

The same applies to this House. As Deputy Ó Snodaigh has acknowledged, the Progressive Democrats have achieved a 50-50 gender balance among their Deputies. However, one cannot have a situation where one constituency party is told that it may not nominate a certain person because it would infringe on the party's capacity to achieve gender balance. It is simply not acceptable.

Mr. Deasy

It discriminates against men.

Mr. Costello

It is about both genders.

Mr. McDowell

I do not agree with the Swedish proposal that one should simply divide the number of seats in Parliament in two and say that one can run a male or female candidate to achieve that. The Deputies, on reflection, should agree that the policy that I suggest is more appropriate, and that there are significant problems with their amendment. I am amused Deputy Ó Snodaigh's amendment would make it perfectly appropriate for me to appoint an all-female board, which is a slightly odd thing to do if I am the Minister for Justice, Equality and Law Reform.

Question put: "That the words proposed to be deleted stand."

The Dáil divided: Tá, 68; Níl, 28.

Tá

• Ahern, Michael.
• Ardagh, Seán.
• Aylward, Liam.
• Blaney, Niall.
• Brady, Johnny.
• Brady, Martin.
• Browne, John.
• Callanan, Joe.
• Carey, Pat.
• Carty, John.
• Cassidy, Donie.
• Cooper-Flynn, Beverley.
• Cregan, John.
• Curran, John.
• Davern, Noel.
• Dempsey, Noel.
• Dempsey, Tony.
• Dennehy, John.
• Devins, Jimmy.
• Ellis, John.
• Finneran, Michael.
• Fitzpatrick, Dermot.
• Fleming, Seán.
• Glennon, Jim.
• Grealish, Noel.
• Hanafin, Mary.
• Harney, Mary.
• Haughey, Seán.
• Hoctor, Máire.
• Jacob, Joe.
• Keaveney, Cecilia.
• Kelleher, Billy.
• Kelly, Peter.
• Kitt, Tom.
• Lenihan, Brian.
• Lenihan, Conor.
• McCreevy, Charlie.
• McDaid, James.
• McDowell, Michael.
• McEllistrim, Thomas.
• McGuinness, John.
• Martin, Micheál.
• Moloney, John.
• Moynihan, Donal.
• Moynihan, Michael.
• Mulcahy, Michael.
• Nolan, M. J.
• Ó Cuív, Éamon.
• Ó Fearghaíl, Seán.
• O’Connor, Charlie.
• O’Donoghue, John.
• O’Donovan, Denis.
• O’Flynn, Noel.
• O’Keeffe, Batt.
• O’Malley, Fiona.
• O’Malley, Tim.
• Parlon, Tom.
• Power, Peter.
• Ryan, Eoin.
• Sexton, Mae.
• Smith, Brendan.
• Treacy, Noel.
• Wallace, Dan.
• Wallace, Mary.
• Walsh, Joe.
• Wilkinson, Ollie.
• Woods, Michael.
• Wright, G. V.

Níl

• Broughan, Thomas P.
• Burton, Joan.
• Connolly, Paudge.
• Costello, Joe.
• Crowe, Seán.
• Gilmore, Eamon.
• Harkin, Marian.
• Higgins, Joe.
• Higgins, Michael D.
• Lynch, Kathleen.
• McGrath, Finian.
• Morgan, Arthur.
• Moynihan-Cronin, Breeda.
• Ó Caoláin, Caoimhghín.
• Ó Snodaigh, Aengus.
• O’Sullivan, Jan.
• Pattison, Seamus.
• Quinn, Ruairí.
• Rabbitte, Pat.
• Ryan, Eamon.
• Ryan, Seán.
• Sargent, Trevor.
• Sherlock, Joe.
• Shortall, Róisín.
• Stagg, Emmet.
• Twomey, Liam.
• Upton, Mary.
• Wall, Jack.

Tellers: Tá, Deputies Hanafin and Kelleher; Níl, Deputies Stagg and Ó Snodaigh.

Question declared carried.

Amendment declared lost.

Amendment No. 25 not moved.

Mr. McDowell

I move amendment No. 26:

In page 11, line 33, after "may" to insert", and where required by this Act shall".

It was pointed out on Committee Stage that certain functions of the authority are mandatory and not simply discretionary, for example, the licensing system, but that this was not adequately reflected by the use of the word "may" when introducing the list of authority functions in section 8. The amendment addresses that point, which was raised by Deputy Costello, and the amended section 8(2) will now read: "Without prejudice to the generality of subsection (1), the Authority may, and where required by this Act shall....".

Mr. Costello

This is a desirable amendment and I am delighted the Minister has seen the light.

Mr. McDowell

I am not as stupid as I look.

Amendment agreed to.

Mr. McDowell

I move amendment No. 27:

In page 14, line 32, to delete "38(5)” and substitute “38(2)”.

This is a drafting amendment which corrects a cross reference to another section.

Amendment agreed to.

Mr. Costello

I move amendment No. 28:

In page 15, to delete lines 3 to 7.

I am concerned that what is described here with regard to where a person has failed under an application to the authority would be regarded by the court "as if it were a contempt in the face of the Court". The section states: "without reasonable excuse (proof of which shall lie on the person), to comply or comply fully with the order," made by the court. I fear the court might treat the failure for all purposes as if it was "a contempt in the face of the Court". This phrase seems to suggest that the failure is an intentional or deliberate insult to the court.

When I tabled the amendment originally, it was in the context of the decision made in the case taken by Fingal County Council regarding the bin charges dispute. The decision then was that while there might have been contempt in the sense that the court order was flouted, it was not deliberate contempt. The judge decided that the county council should clearly indicate and read out the details of what was involved in the order because the people present were not aware of the details of it. While flouting the order might have been seen to be in contempt, it might not have been intentional or deliberate.

My concern is that the manner in which this section is phrased may make it appear as if the failure of a person to comply will be presented as if it was "a contempt in the face of the Court". It appears harsh and deliberate, but that may not be the case.

Mr. McDowell

The purpose of this section is to ensure compliance with the investigatory powers of the authority. If somebody wilfully refused or simply ignored the authority's requests and directions, the authority would apply to the District Court for an order pursuant to the provision of this section. The person would then be summoned before the District Court to reply. Effectively the person would be asked whether he or she was going to comply with the order. If the person said "no", he or she would be dealt with as though he or she was refusing to obey an order of the District Court made within jurisdiction in the course of a court case. I am advised that this is the appropriate way of dealing with this matter. It gives the District Court the power to compel somebody to comply.

The alternative is to provide a criminal sanction of an ordinary kind such as that a person who fails to comply with the direction of the authority shall be guilty of an offence and will be liable on conviction to a fine. If that happens, there is effectively no coercive means of getting investigations going and people who have been engaged in a bad activity will be able to frustrate the operation of the investigations into their activities by ignoring the directions of the authority by going offshore or whatever and by saying they do not want to participate. This will leave the authority with no alternative but to go to the DPP to institute a criminal proceeding, which could take months to filter through the system. This is a ready made system. If people are "messing the authority around" and refusing to comply with the requirements, the authority has a quick and simple solution to put it up to those people either to comply or be punished. This is the more appropriate approach.

Mr. Costello

I do not disagree with that. However, is a breach of a court order the same as having "contempt in the face of the Court"? Contempt in the face of the court is like misbehaving in court. What does this language "in the face of the Court" mean? A court order is one thing whereas a court is another. The original issue I mentioned concerned whether the court order was fully understood. The judge decided that although the court order was served, there had been no attempt made to explain the order or its intention to the people there at the time. However, this phrase "contempt in the face of the Court" seems to imply that someone comes into the court and insults the judge. Is the language out of line? It seems to suggest a breach of a court order in the presence of the judge and misbehaviour by the person in court. The section seems confused in that respect.

Mr. McDowell

The subsection reads as follows:

(5) If it appears to the Court, on application by the Authority, that the person has failed, without reasonable excuse (proof of which shall lie on the person), to comply or comply fully with the order, the Court may treat the failure for all purposes as if it were a contempt in the face of the Court.

This is an enabling provision for the District Court. However, it does not require it to automatically jail a person. Under our Constitution, the District Court, like every court, must operate by reference not only to the terms of the statute but by reference to constitutional values. The court cannot just jail people who have a reasonable case to make to it. It must apply its jurisdiction proportionately, reasonably and in a manner which upholds constitutional values. I would not be as afraid of the provision as the Deputy suggests. It is not some kind of automatic guillotine which would immediately send a person to jail for contempt. It puts the District Court in the position that having regard to constitutional values and norms, it can force somebody who is wilfully non-compliant to comply, through the use of the same kind of powers it would have if somebody said directly to the court that he or she would not comply with a court order.

Mr. Costello

The Minister is saying the proof shall lie on the person.

Mr. McDowell

The proof of the reasonable excuse.

Mr. Costello

In the High Court case I mentioned the judge determined that the proof lay with the authority. The section reads if "the person has failed, without reasonable excuse (proof of which shall lie on the person), to comply or comply fully with the order". In the bin charges case the judge determined that responsibility lay with the authority to make clear the details of the order. He decided that the court order had been implemented without sufficient clarity being provided to the people held to be in contempt of the order. Does this not introduce some dubiousness with regard to the constitutionality of this provision?

Mr. McDowell

Proof of the failure lies on the authority but proof of the reasonable excuse lies on the defendant. One cannot ask an authority which has made an order to bring evidence before the court ruling out the possible existence of every possible reasonable excuse. For example, we cannot ask it to assure the court that the person is not now in hospital, or that on the day, the person was not suffering from delusions. We cannot do that. In order to have a reasonably workable system we must examine the means of knowledge. If the person who has failed to comply is in possession of a reasonable excuse, proof of that should lie on him or her. In any event, I am out of order. I should not be making a third speech.

Mr. Deasy

That is a first.

Question, "That the words proposed to be deleted stand", put and declared carried.

Amendment declared lost.

Mr. Deasy

I move amendment No. 29:

In page 16, lines 34 and 35, after "information" to insert:

", including any information necessary to enable him or her to furnish a parliamentary reply".

Each time we establish an authority or body, we devolve power to it, which in some cases makes it largely unaccountable. Some degree of accountability must be preserved. On that basis, the body we are creating and other such bodies must be answerable to the House through the Minister. The legislation specifies that the authority shall give to the Minister such other information regarding such performance as he or she may from time to time require. The purpose of the amendment is to include information that may be sought by means of a parliamentary question.

In some cases when a question is asked of a Minister, he or she gives a reply to the effect that he or she cannot answer the question as it relates to a body outside the remit of the House. It will suffice for the Minister to give assurances in this case.

Mr. McDowell

I fully sympathise with Deputy Deasy's dilemma, especially given the incident where a fuss was generated when I was in London. I assure him that, in regard to the functions of the authority in respect of which it is not making an independent judgment, my successors and I will be answerable to the Dáil.

If, for instance, a decision is made by the authority or the appeals board that so and so is an unsuitable person to be granted a licence, I cannot be placed in a position to defend that decision in the Dáil. If we create an independent authority and appeals board and they determine that Michael McDowell is not a suitable person to run a security firm, we cannot allow debates in the Dáil where my successor will have to defend what is effectively a quasi-judicial independent decision made by an independent board. That is the kind of fine line we are on.

It is another matter if the question relates to an independent issue. If the Deputy asks how many licences were given out, I agree with him that my successors and I should answer that question. However, if the issue comes down to the reason a decision was arrived at on the suitability of certain applicants, it is not right that a Minister should have to account in the House for a decision made by a statutory body independent of the Minister's responsibility. That is the fine line that exists between the two.

I agree with Deputy Deasy that it is unfortunate if the fact of a body being independent is used in every case to absolve the Minister from responsibility as that effectively means that huge areas of what were formerly departmental or executive responsibilities disappear from the remit of parliamentary accountability. If I can give him that assurance, I will give it to him.

Many people are asking for an independent police authority in regard to the Garda legislation. I would like to see what would be left in terms of the parliamentary accountability of the police if——

Mr. Costello

The Police Ombudsman of Northern Ireland has no communications problem.

Mr. McDowell

The Ombudsman may not, but it would have implications if there were a security minister in Northern Ireland, which we will have when devolution is fully achieved. I would like to see whether it will be regarded as satisfactory that independent decisions made by members of the police authority in Northern Ireland are not subject to accountability in the Northern Ireland Assembly. That is one of the issues that arise. If one says something is in a category of decision independent of ministerial influence, one cannot then ask a Minister why a decision was made.

Mr. Deasy

I accept that. However, a difficulty arises in that this type of provision is being abused. Members on all sides, including those in Fianna Fáil or the Progressive Democrats, ask questions of Ministers. If a question is perceived to be awkward, the Minister uses the excuse of something being outside his or her responsibility so as not to answer it. We are devolving power outside the House, which weakens it.

When somebody asks a question, whether it is about the National Roads Authority or whatever, it may not be an independent decision under its statutory powers, but this is used as an excuse by Ministers not to answer questions. I accept the commitment expressed by the Minister to answering questions, but the system is being badly abused by the Government and many Departments when bona fide questions are asked of Ministers.

Mr. Costello

I agree with Deputy Deasy. It is reasonable that the amendment is accepted. The legislation states that the authority should provide to the Minister such other information regarding such performance as he or she may from time to time require. It does not refer to information that may be required by the Oireachtas. The Minister will have carte blanche to demand any information from the authority which he may require on a whim. This should also include information required to answer bona fide questions tabled in the House.

The point was well-made that we have established many authorities and bodies external to the House. As a result of bodies being set up under their own aegis, we are unable to get replies that are deemed beyond the remit of the Minister. We must establish a link between these bodies and a responsible Minister in each case so that he or she may request the necessary information sought by a Member of the House. The Minister and his colleagues should examine this area. It is a serious complaint that less information is coming to the House, which gives rise to frustration. The public will view the House as becoming increasingly irrelevant.

Aengus Ó Snodaigh

I support Deputy Deasy's amendment. The Minister raised the issue of a police authority. If one asks a question about the Garda Síochána, in many cases one is told that it is an operational matter for the Garda Commissioner. We are already restricted in the type of questions that can be asked. The same is true of questions about the prison service and the courts service. They no longer fall within the remit of ministerial responsibility.

We do not want to delve into specific incidents. The type of answers required in the House about decisions taken do not have to concern specifics. The Minister used the example of information on the number of licences awarded and refused. That is the type of information to which we are entitled. The legislation should specifically refer to this fact to ensure that, in future, a Minister cannot respond that issues of this nature are not within his or her remit as the body in question is independent and provides an annual report. Such bodies must be accountable not only to the Minister but to committees of the House if required.

I repeat that these bodies should not be required to provide information on the specifics of individual decisions, but in regard to the overall running of the authority. If only one licence is granted and 100 are refused it would be a matter of concern to the Opposition, which would seek to learn the reasons without going into the reason for individual decisions. We must provide for adequate accountability in the way suggested by Deputy Deasy or in a similar manner. Reference must be made in the legislation to the parliamentary duties of the Minister, not just to his ministerial duties.

Debate adjourned.