Seanad Éireann díospóireacht -
Friday, 20 Dec 1996

Vol. 149 No. 17

Oireachtas (Miscellaneous Provisions) and Ministerial and Parliamentary Offices (Amendment) Bill, 1996: Committee and Final Stages.

Sections 1 to 6, inclusive, agreed to.

SECTION 7.

Mr. F. Quinn

I move amendment No. 1:

In page 8, subsection (4), line 20, to delete "1st day of January," and substitute "20 December,"

I will not press this amendment to a vote but I want to ensure my purpose in tabling the amendment is understood. It is to avoid retrospection, and ensure this legislation operates not from 1 January last but from today. There are two reasons it is important to do this. The first is one of principle and the second relates to the practical question of equity.

I have a real problem with any legislation allowing for retrospection. It is a fundamental tenet of democracy that citizens know the law. That is the basis of freedom. If we in the Oireachtas allow any law to be passed and to be made retrospective then we are in danger of not treating citizens as they should be treated in a democracy. When a law is to be made retrospective, we must stop and see if we can allow this. I refer to the principle rather than the actual arrangements in this case. If we allow the State to legislate retrospectively we strike at the fundamental base of our democracy. With regard to this principle, I and every other Member has a duty to draw attention to any law which is to be made retrospective. I intend never to allow retrospective law to be made without drawing attention to the chipping away of democracy that entails. Democracy is based on legislation on which the citizens know where they stand and we should abhor retrospective legislation. There have been exceptions and there may be more but if we allow those exceptions to pass almost on a nod and without criticism, we damage the foundation on which our democracy is built. On principle, we should not legislate retrospectively.

The second aspect relates to equity between the citizens and those who create legislation. The implementation of changes in law which will benefit citizens is always delayed. I refer to legislation from the Ministers for Social Welfare and Finance. Whenever something to our benefit is introduced, we are told it cannot be had immediately and that it takes time to implement. When the Minister for Finance introduces changes, they do not come in on that day but later. We are in danger of creating a very large gap between the "plain people of Ireland" in how we treat ourselves when legislation refers to us. This is the wrong time to give such a signal. It is important that the House recognise the dangers of retrospection. We must not apply that retrospection when it is to our benefit and not do so when it applies to citizens.

Until the Minister's speech last night, I was concerned at a number of aspects of this Bill. His speech was impressive for its explanation and passion. The Minister explained why so much of this Bill should go through. It changed my attitude a great deal. Today my purpose is to draw attention to the retrospection particularly because it applies to political parties and Members of the House, those who make the laws. By passing this on the nod, we are in danger of saying to our citizens who elected us, that there is one rule for them and one for us. That is the purpose of my amendment.

The Minister made a strong case for this Bill last night. I would have liked this discussion to take place in a cooler atmosphere. When retrospective legislation is rushed through at the last minute in the last session in the House, we are in danger of losing the argument, of not being highly regarded by our citizens and putting the legislation passed by the House beyond the trust of the citizens. That is why I have asked that this date be reconsidered and we treat ourselves the same way we treat them. Senator Fitzgerald made a strong case that needed to be heard but we are in danger of losing that argument if we do not make it in a measured way. I urge that this amendment be considered.

Mr. Fitzgerald

I oppose the amendment which I understand Senator Quinn does not intend to press. I want to outline how the change in regard to overnight allowances came about, and my views probably reflect those of every Member. I have bundles of letters rejecting my claims for overnight allowances going back as far as 1 March 1995. I do not know when this regulation was first introduced but I believe it was approximately two years ago. I understand there was a change of personnel in the Department dealing with these allowances and an examination of the legislation revealed that something was not being done properly up to that time. The person who made this discovery immediately set about rectifying the position, wrongly. For as long as I have been a Member it was the norm that Members in attendance for the last sitting of the House were entitled to the overnight allowance, and no questions were asked about the time the sitting adjourned.

Two years ago I was amazed to receive a letter informing me that because the Seanad adjourned before 4 p.m. I was not entitled to the overnight allowance. The letter set out, in a ridiculous manner, the reasons. I was allowed one hour to "clear my office"— the words used in the letter — an hour to get out of Dublin and then travel at an average speed of 35 miles per hour to reach my home in Kerry before 12 o'clock. I do not want to be nasty about this but am I not entitled to break my journey to go to the toilet or have a cup of tea? I was expected to travel home on a winter's day at an average speed of 35 miles per hour; in the summer they expect people to travel at 40 miles per hour.

I ask the Minister to return to the original arrangement and pay us our rightful overnight allowances backdated to that time, although Senator Quinn said they should not be backdated even one year. I would be glad to accept them backdated one year even though every Member is entitled to have them backdated two years.

The sitting of the Seanad to which the letter referred adjourned at 1.53 p.m. on the day in question. Everybody knows this House sits until 1 o'clock, with a sos until 2 o'clock, but that day we decided to sit through the sos to dispose of a particular Bill. That might also have been to assist the Minister who might have been unable to return to the House at 2 o'clock.

I would be happy if Senator Quinn withdrew his amendment in view of what I said. The backdated allowances are rightfully owed to us, even though they are only being backdated one year. The change should never have been implemented in the first place. I made my views on this matter known to the Minister prior to the summer recess and he was man enough to tell me he would look into the matter and correspond with us. Although the Minister is on the opposite side of the House he is a man of his word and I admire him for what he has done.

Mr. O'Toole

At the risk of splitting the Independent benches I cannot support my colleague in this matter. I agree with the comments made by Senator Fitzgerald. The range of expenses and allowances for Members of both Houses are pathetic. I compliment the Minister on the assertive way he has dealt with this Bill in the media in recent days. If somebody had asked me for my advice I would have said the Bill should not be introduced now because it is not the right time.

This is not new legislation. It is not necessary for these expenses and allowances to be covered by legislation. They should be automatically indexed and increased, and noted by both Houses. I do not have any sympathy for Senator Fitzgerald's argument because I offered to deal with this problem in the past year. The way to address it is not by going back to the Minister. It simply requires a decision of this House directing the official to pay the money which is properly due. There would be a constitutional crisis if somebody refused to pay Members of this House what they are entitled to under the Constitution, expenses as required. The Constitution does not go further than that. It is clear and that is what should be done.

On occasions when my expenses were challenged I challenged the query and I was always proved correct. On behalf of Members I made a presentation to the Buckley committee during which I appealed for the abolition of this extraordinary system of paying expenses.

I listened to a Government representative being interviewed on "Morning Ireland" yesterday. He was shafted by the interviewer because he was trying to defend the indefensible. He should have said that the system for paying expenses is wrong. If it is to be compared with the system in private business or other operations, we should compare like with like.

The best way to operate this system is to require Members to submit their expenses at the end of the month with details of trips made, overnights etc. The people who administered the system over the years adopted a trouble free, less administrative approach by simply giving Members their entitlement for the month. They thought everybody was happy with that approach but we are not because expenses will now be queried and it is difficult to explain that these expenses are to compensate them for the whole month.

We should have a system similar to that which applies for people who work for, say, the INTO — I am sure Senator Quinn's staff avail of a similar system — where there is an element of trust in regard to vouching expenses. A person cannot pretend they were at a meeting if there were 20 or 30 other people in attendance.

Members of both Houses are afraid to discuss this issue but I am not because I can see that the current system is wrong. People are losing out and are being sucked into a sort of twilight zone in regard to claims for expenses.

I am in favour of retrospection. I would be a liar if I said I had not spent three months arguing with the Minister's officials about it; I want to say that to him before he says it to me.

Minister for Finance (Mr. R. Quinn)

And the sums of money are a little larger.

Mr. O'Toole

Nonetheless, we are talking about a principle. Whereas Senator Quinn's arguments, taken out of the current context, make sense, they also feed the scepticism of those who say we are doing this for ourselves. That is the message that will emerge, but that is not the case. People are either entitled to these expenses and allowances or they are not, and I agree with Deputy Fitzgerald that they should be backdated further than one year. It makes sense, however, to keep it within the budget year. I hope the Buckley report will deal with that issue.

The Government and Opposition Whips do a great deal of work for this House and are entitled to an allowance. In order to ensure the smooth working of the House, certain people spend half the weekend telephoning each other, working out amendments on a Sunday night, trying to arrange when Members will speak, and so on, for which there is no recognition. The Department of Finance has always argued that is covered by the allowance given to parties but I reject that. The House must organise its own operation and there is a very strong and valid case for providing an allowance to those who take on this extra work and responsibility. I can defend that argument anywhere. In any workplace when people are requested to take on an extra organisational role or job it is reflected in their salary.

The Independent Members lose out very seriously because we are not affiliated to a party group. However, we, too, need to do a huge amount of research and work with the minimal of resources. There must be a way under this Bill for Independent Members of the Seanad, in particular, who cannot form themselves into a group for the purposes of this Bill — although they can for other matters and Independent Deputies have made arrangements over the years to include people outside the Dáil for the purposes of forming a group — to be given resources and back up. They cannot claim funds from any parties or support networks.

I appreciate the public stand the Minister has taken on the issue, as Senator Fitzgerald said. It is important for the sake of parliamentary democracy that we insist people are properly rewarded and compensated. Those who say it is too much should come up with a better system. Many people cannot afford to get involved in full-time politics because of the low level of reward and compensation. I support this minimal step and I cannot support my colleague's amendment. I wish the Minister well with the legislation.

Mr. Howard

I hope Senator Quinn will withdraw his amendment. A number of aspects to which I wished to refer have already been very thoroughly dealt with by Senator O'Toole; I will not repeat what he put so very clearly before the House.

When I explain my situation perhaps Senator Quinn might view his amendment in a different light. Of those of us present in the Chamber, Senator Calnan, Senator Fitzgerald and I have the greatest distances to travel to our homes. My home is 150 miles away. I had no difficulties with the overnight allowance until about two years ago. My experience at that time reflects a situation to which no Member should be subjected.

In the summer of 1994 I had a serious illness and I had bypass surgery that October. I returned to my duties as a Senator in January 1995, subject to medical advice. I was not in a fit medical condition to drive 150 miles home on a winter's night after a Thursday session of this House. However, when I submitted my application for overnight expenses it was disallowed by somebody who had no medical experience or regard for my medical or physical ability to make that journey. Members should not accept or tolerate such a situation. I discussed this with Senator O'Kennedy who had been through a similar experience. It is demeaning to the status and standing of Members, such as Senator O'Kennedy and I, for someone with no medical experience to decide on our ability to do something which we had been advised against doing by the best medical advice.

I do not wish to repeat anything Senator O'Toole said. However, if Senator Quinn had found himself in my position or if he lived 150 miles from the House, I doubt he would have tabled this amendment. I suggest, for that reason, that he withdraw his amendment.

Mr. Calnan

I also oppose the amendment. We are not talking here about pay, salaries or remuneration but about expenses.

Mr. Fitzgerald

A refund.

Mr. Calnan

It is a refund of something which has already been paid. It is very important to get that point across to the public. There is no increase in the telephone allowance. I have already used up my allocation for this year.

When the Seanad adjourns at 3 p.m. I am told that I have an hour in which to finish the work which has gathered on my desk. That makes no sense. I then have an hour to get through Dublin, but one day it took me an hour to get through Kildare. These matters are not taken into account. As I said last night, the route I have been told I should take when going home is like starting a rally drive, with stage one to Portlaoise, stage two to Cashel and so on. Having arrived here at 8 a.m., begun work at 9 a.m. and worked all day in the Seanad or my office, it is not a very nice prospect to have to drive over 200 miles to my home.

Mr. Fitzgerald

After a 14 hour day.

Mr. Calnan

It is 16 hours if I get home at midnight. Staying overnight in Dublin is necessary for health and safety reasons. I see no alternative to opposing the amendment.

Dr. Henry

I understand Senator Quinn's arguments and his concern about retrospective legislation. I am, of course, one of those who will not gain from this legislation. There is one area where it is important that the legislation should be retrospective. That is in respect of section 4 which deals with payments indemnification in respect of certain persons in employment. I was appalled to hear that if we do not pass legislation Deputy Geoghegan-Quinn — in addition to having a telephone bill of £6,500, which is bad enough — would be liable for the accident which occurred to her secretary through no fault of hers. Because of that section alone I cannot support my colleague, even though I very much appreciate what he said.

It would be worth while bringing in vouched expenses, as they do in the European Parliament. I feel sure there would be no problem in people producing them as they do for trips abroad. People always end up having spent more than they were allowed.

Mr. R. Quinn

A Cathaoirligh, I hope I am in order in addressing a few remarks to you. I am a former pupil, if not apprentice, of this House, and this is the first time I have had the opportunity to be here since your recent election. Your illustrious family name is a legacy of which you must be and are entitled to be very proud. I am honoured to be here in your presence, and I congratulate you on being elected.

To return to the principle of the argument enunciated by Senator Quinn, the Senator is correct in saying retrospective legislation is fundamentally wrong when it retrospectively creates a criminal offence and results in a person being prosecuted or billed in respect of an act which was neither a criminal offence nor would have incurred liability at the time it was committed. It would be unconstitutional to prosecute a person on that basis, and a claim in the courts would ultimately be vindicated. That is not what we are doing here.

It is no harm to restate that citizens have rights which are enshrined in our Constitution and which are interpreted by the Supreme Court. We are not, therefore, totally free agents. We are not a sovereing parliament in the sense that the Houses of Parliament at Westminster believe they are a sovereign parliament that can unilaterally do what we cannot, that is, change the Constitution on a daily basis.

There are, however, many precedents for retrospective legislation in this House. For example, the Fianna Fáil Senators will recall the Jack Lynch landslide election of June 1977 — I recall it clearly, having been recently elected. The former Taoiseach, Mr. Jack Lynch, said with prescience that perhaps a majority of 22 was too much. History took its own course on that point. I am glad to acknowledge the presence in the House of Senator O'Kennedy who was a very illustrious member of the Government that was formed in 1977. He will recall a series of announcements——

Mr. O'Toole

We called it a budget.

Mr. R. Quinn

——in early July endorsing the Fianna Fáil Manifesto, which had clearly got a popular mandate, one of the proposals of which was the £1,000 first house purchase grant which was paid out from that date. The law giving retrospective legality to the vote on that money did not come into effect when we came back into session in the late autumn in that year. The late George Colley, former holder of the office I now have the honour to hold, made an announcement in respect of it. This was perfectly democratic. The money was voted because the Government of the day, with the support of the Oireachtas, agreed to it. I cannot recall any Finance Bill that does not have an element of retrospection, for example, in respect of a liability arising which was never intended by the legislators or the Revenue Commissioners who, like referees on a football pitch, or judges in a court, have to administer and interpret the law as they see it. Life is an organic constantly-changing experience, and we cannot with prescience design for every foreseeable circumstance. Even when we try to, we do not envisage some of the things that happen. Therefore, there has been retrospection in tax laws of one kind or another. I can think of two or three examples, but I will not bore the House with the details.

With the modesty to which we have become accustomed, Senator O'Toole referred to the timid claims made by him on behalf of his organisation, most of which make outrageous claims for retrospection.

Mr. O'Toole

They are modest claims on behalf of modest people.

Mr. R. Quinn

There is a precedent for retrospection, but not in the area under discussion where, a bit like the king in "Alice in Wonderland", an act is retrospectively deemed a criminal offence and people are charged and punished. As to the change in the guidelines and whether there was a new level of vindictiveness among civil servants in this House that they interpreted overnights in a harsher way than was previously the case, this was visited upon the Administration by a constitutional officer of this Republic, the Comptroller and Auditor General, who took the view that the way we had administered overnights was not in accordance with the standards which he is constitutionally charged under the Constitution to administer. Lest there be a perception that permanently paid staff of the Administration took it upon themselves to reinterpret rules that had previously been interpreted differently and that it was an arbitrary and vindictive decision, it was not. It was consequent on the ruling of the Comptroller and Auditor General on the provision.

Senator Quinn's quest for a stay is not just confined to the question of payments and allowances and moneys due to Senators and Deputies. It would be unfair to portray him as making that case only when it has been so successfully rebutted. In fairness, the Senator also argued that the payment for the leaders of political parties should not be paid out either. I was honoured and somewhat flattered to hear Senator Tom Fitzgerald describe me as a man of my word. On that basis I was delivering something I said I would deliver, something I could deliver without necessarily resorting to legislation. Likewise, I gave an undertaking as Minister for Finance that there would be payment for political parties through the original Electoral Bill in the course of 1996. We ran into the legal and legislative difficulties which I described in some detail yesterday evening and which I will not repeat now. Leaving aside the question of other expenses, there is an expectation that expenses will be incurred by political parties in employing people. It is the commitment I gave in respect of that that I want to honour. That is why I cannot accept the proposed amendment which would prevent me from doing that.

While I am on my feet, I will deal with the point made by Senator O'Toole and others regarding vouched expenses. At the end of the debate in the other House I made a point on the way we manage our affairs. Officials in my Department have begun to prepare a note on it. Most if not all democratic assemblies, of which this is one, organise and manage their affairs in that they have a separate budget which they vote upon themselves. At present, however, the Vote for the Houses of the Oireachtas is processed and dealt with in the same way as Votes for other Departments and offices of State. Those making the case for the Vote are not the political heads, such as the Ceann Comhairle, the Cathaoirleach or members of the Committee on Procedure and Privileges, but officials, who make the case to other officials from the Department of Finance.

Senator O'Kennedy held various offices and was an illustrious Minister for Agriculture and Food. He is aware that, ultimately, cases as to why extra money should be allowed are made politically, above normal considerations, at bilateral meetings between the Minister of a Department and the Minister of Finance of the day. Inevitable compromises emerge from the process.

I am prepared to consider the proposition, if it is well made and carefully presented, that the Houses of the Oireachtas be treated in the same way as other democratic assemblies in the EU. This would be subject to the provisos, first, that terms and conditions of employment for permanent staff would be in line with Civil Service norms and, second, that pay and remuneration in terms of salary for Members of the Houses would be in accordance with either the Gleeson or the Buckley recommendations. This would preclude the power to unilaterally vote massive salary increases.

On the question of resources and the way in which expenses are managed, we should align ourselves to good business practice. There should be monthly submissions of expenses within agreed norms. Senator O'Toole knows when a submission for expenses from a member of his executive or staff within the trade union organisation of which he is general secretary is offside. There are formal and informal procedures for dealing with such instances and there is nothing to prevent us from taking the same approach. How we proceed is a matter for ourselves.

Returning to my comments on the Comptroller and Auditor General, there is a point at which unvouched expenses and allowances inevitably cross into the territory of additional income. The law must then apply, whether it be benefit in kind, allowance income or whatever, and this can only be established through a mechanism which allows for vouched expenses. That is the advice I have received, and it is right and proper against the background of the past couple of days that we are seen to be as compliant, disciplined and policed in our taxation matters and affairs as other citizens.

Following that, doing the business of the State, for which we are elected, is something about which we should be proud and not defensive. People elected to do a job should be paid for the associated costs, whether it be travelling expenses from Kilrush or Dingle. Salaries are determined by a different mechanism. For these reasons I am not in a position to accept the amendment. I hope I have addressed some of the concerns that have been articulated.

Mr. F. Quinn

My purpose in moving this amendment was to ensure the legislation did not go through the House without debate. The Minister has addressed my concern regarding retrospection. However, I will continue to express such concern whenever there is retrospective legislation, even if matters of criminal liability and taxation are not involved. When dealing with our citizens we seldom make measures retrospective, but we find it easier to do so when dealing with ourselves.

I regret that so much of the debate addressed matters pertaining to this House because the Minister has explained that the bulk of the legislation is concerned with party political funding, etc. Senator Howard made a strong case in asking me to withdraw the amendment. I am fortunate in that my income from the House is not my sole income and my expenses are, therefore, not of huge importance to me. In addition, my home is near the House and I do not have the travel problems outlined by many Senators.

The amendment has elicited a response from the Minister which has been acknowledged by all sides of the House. I will, therefore, withdraw it on the basis that it achieved what it set out to do. I appreciate the attention Members have given it, and especially the attention given to it by the Minister in his explanation of the quandary and difficulties he faced during the past year.

Amendment, by leave, withdrawn.

Section 7 agreed to.

Title agreed to.

Bill reported without amendment and received for final consideration.

Question proposed: "That the Bill do now pass."

Mr. O'Kennedy

I thank the Minister for his forthright presentation of the rationale behind the Bill. I also thank my colleagues, notably Senator Quinn, for allowing the House the opportunity to discuss the basis of these increased allowances.

I have been privileged to be in national service here for 32 years. However, I must question the timing of the legislation. We need to enhance the status of public representation, which is very important, not only for those of us who are privileged to serve for the time being, but for those whom we hope will replace us. We must ensure that nothing can be said or done that would diminish that status.

Any Minister introducing legislation will leave himself open to question on timing. The impression was conveyed that this item was being rushed through but that is not the case. I am much better paid in the legal profession than I am as a Member of the Seanad but I want to speak on behalf of all my colleagues in the honourable political profession. I regret the impression conveyed that this is an occasion for politicians to stock up on their treasures or that they do not care about and are not sensitive to the public whom they are obliged and privileged to serve. I am happy that this debate is taking place. The Minister's forthright presentation and his suggestion that we be treated——

An Cathaoirleach

I remind the Senator that the debate has concluded.

Mr. O'Kennedy

We will be judged by the same criterion of efficiency. I hope that those who report our proceedings here, not only on this item but on many other occasions, will be able to reassure the public that whatever else public life is, it is not and never will be an occasion for stuffing our pockets at the expense of those who gave us the privilege of being here. Many people come into public life at considerable expense and financial loss.

I thank the Minister for the manner in which he has presented the Bill.

Minister for Finance (Mr. R. Quinn)

I wish to respond to the gracious compliment paid by Senator O'Kennedy. We have crossed swords on occasion but, as fellow democrats, we rise to support an ideal which we cherish strongly. I say to my colleagues of the Fourth Estate there is not a tyranny in the world that provides for a free press. There is not a dictatorship that allows a free press to report with impunity the activities, including the human frailties or the peccadilloes or the flights of ego, to which everybody, dare I say some columnists, succumbs. A democracy is the bedrock for the foundation of liberty. A free press is essential to liberty. Eternal vigilance can only be maintained by a well informed press. I regret — I say this without any sense of wrath of which I was accused today on the front page of a newspaper — that some of the big issues with which we have grappled in this and the other House do not attract the same degree of attention as some of the human failings and frailties which we all possess, myself included.

Previous generations did not have the honour to participate in such Houses and were obliged to obstruct the business of another House across the Irish Sea to ensure that the voice of the people whom they represented was heard. I want the people who after so many hundred years of aspiring to an independent republic to have the resources to do the job for which they were elected. If at the end of my term of office the citizens decide we are not fit to hold the trust they bestowed on us they can withdraw it. I would be the first, without any sense of regret, to acknowledge not only their right to withdraw that trust but also the honour they bestowed on me. I thank Senators for their co-operation.

Mr. Fitzgerald

I am pleased the Bill has been passed. In the run up to Christmas I will be going home a happier man and will find it easier to pay the hire purchase on my car and the mortgage on my house in the new year. I thank you, a Chathaoirligh, the Clerk and Assistant Clerk, parliamentary transcribers, the staff of the House, the press, the Minister and my colleagues for their co-operation during the year and wish you all a happy Christmas. I hope the new year will be a good one for all of us.

Mr. Howard

I thank the Minister for his presentation both today and yesterday. On the many occasions he has attended the House as Minister, he always treated it with the respect it deserves and has always listened to and taken on board constructive suggestions. In particular, I compliment him on the remarks he has just made and his attention to the House. He described our role and said we should feel privileged to serve in either House of the Oireachtas. There is a desire to ensure fair and honest representation in the media of the efforts made by Members of the Oireachtas in the discharge of their duties.

I wish you, Sir, the Minister and my colleagues a happy Christmas season and a successful new year. I look forward to the Minister being here on many occasions in that portfolio.

Mr. F. Quinn

I thank the Leader of the House for permitting this debate to take place and responding to my concerns of yesterday that the Bill would not be rushed through. The Minister's remarks, particularly his explanation last night which was unscripted, which came from the heart and was presented with a passion, influenced all who heard them. He said we are honoured to be Members of the House, a privilege which our grandparents did not have. He and I have the same grandparents. All our grandparents would look with pride on the Houses of the Oireachtas and at what has happened in the past 100 years. We are honoured to be Members of this House. The contributions of the various Members have shown that the honour has been worthily achieved.

I wish the Cathaoirleach and his team a happy Christmas.

Mr. Calnan

I compliment the Minister on the passing of this Bill. The preparatory work is a credit to him. I wish everybody a happy Christmas.

Question put and agreed to.