These two amendments are connected since the purpose of amendment No. 4 is to make section 15 — which amendment No. 39 proposes to insert in the Bill — citable with the Irish Nationality and Citizenship Acts, 1956 to 1994. Amendment No. 39 proposes to insert after section 14 a new section providing that where an office holder proposes to perform a function of his or her office to which this section applies, he or she shall, in addition to complying with the provisions of section 14, comply with the requirements set out in paragraphs (a) and (b). Subsection (2) provides that the section shall apply to the granting of a certification of naturalisation under the provisions of section 16 of the Irish Nationality and Citizenship Act, 1956, as amended by section 5 of the Irish Nationality and Citizenship Act, 1986. Subsection (3) provides that unless the declaration of interests provisions set out in subsections (1) (a) (b) are put in place, the certification of naturalisation should not have effect. While not rehearsing all the controversial matters with which this measure is designed to deal, it is worth pointing out that under existing law it is open to the Minister for Justice to grant a certificate of naturalisation at his or her absolute discretion on a number of statutory grounds, one of which is Irish associations. The phrase "Irish associations" was inserted in the 1956 Act after considerable debate in which the Attorney General participated. It was suggested that it might allow a business partner of an Irish person to become an Irish citizen purely because that partner had a business connection with Ireland. It is relevant to note that the then Minister for Justice and the Attorney General ridiculed such a suggestion and said that it had nothing to do with cases of business investments in Ireland and that, accordingly, the term "Irish association" had a much narrower meaning which was connected with areas of close association with Ireland not covered by the other statutory criteria for granting naturalisation.
Times have changed and business connections with Ireland, despite the assurances of the Attorney General in 1955 to Dáil Éireann as to what the Bill would actually do, have now become the basis on which people are granted Irish naturalisation. Like many other countries we have a business migration scheme. Business migration schemes anywhere in the world are first about granting citizenship to somebody who proposes to become a resident in the country in question and, second, they are concerned with people who propose to bring with them substantial capital to invest.
Any country that values its citizenship any more than a Panamanian of Liberian flag of convenience, does not permit its citizenship to be granted to people merely because they lend a considerable sum of money to a company experiencing difficulties. Until recently one would have thought that was not the case here, and, without getting bogged down in the detail of recent controversies, it is essential that we know whether Irish citizenship, which ensures full rights to participate in Dáil elections, rights under our Constitution and the right to be elected as a Member of the Dáil, is available to a person in circumstances where the only thing he has done is to lend £1 million or more to an Irish business man. That is a matter on which fundamental ethical difficulties arise and it is in that context this amendment is tabled because it has been found, unfortunately, that the discretion given to the Minister for Justice and the statutory interpretation by the former Attorney General, when the provision on Irish associations was put in place, is not an adequate safeguard or is not designed to maintain standards. Unfortunately, we are now in a very peculiar position whereby the business migration scheme, to which the Chair referred when he warned me to be relevant, effectively has now been suspended and is no longer in operation even in meritorious cases because of a political snag whereby the Minister is refusing to approve any of the applications and is requiring, curiously enough, the Tánaiste's approbation of such applications. I do not know why that is the case, but it is very clear there is an ethical dimension to this. There is a fundamental question as to whether in that context conflicts of interest could arise.
In what context can a conflict of interest arise, which would have to be declared and what will we do about a declaration of interest in these circumstances? The most obvious and the most gross conflict of interest would arise if a Minister, for instance, proposed to allow somebody to become an Irish citizen in return for an investment in his family firm or a loan to a close relative. A conflict of interest would arise also if, as happened recently, one member of the Government benefited through his family company, of which he was a 41 per cent shareholder, by an investment or a loan made by a person who sought citizenship from the Minister for Justice. In those circumstances, we must look to the Bill to see whether there is an adequate safeguard. Looking at the original text of the Bill and, in particular, section 14, as originally proposed, I was astonished to find that it would have no effect in those circumstances. I pointed this out to the Minister on a radio programme and I now see that she has tendered an amendment to deal with this glaring loophole.
Even if these loopholes are closed as proposed by the Minister, it is still not sufficient because all that would have been required in the case of the investment in the Taoiseach's company to comply with the Minister's proposed safeguards, would have been for the Deputy and Minister for Justice, Deputy Pádraig Flynn, to write a letter to the Taoiseach and to the commission saying that he proposed to grant citizenship to X or Y and that it would involve a very significant benefit for a member of the Cabinet. That is the only safeguard we are putting in place. It is proposed now by way of safeguard that such notification must be to the Taoiseach which, in the case to which I referred would be a little redundant, unless one accepts his statements that he knew nothing about the investment until a later stage.
If the only action one must take is to notify the Taoiseach and the commission, can that be regarded as an adequate safeguard? Is it adequate in the context of granting citizenship to a third person in respect of a loan, dressed up as an investment, which is supposed to benefit another member of the Cabinet? Is it adequate that the only safeguard put in place is that the commission is notified? If so, that raises the question as to what the commission should do with the notification. This matter goes to the heart of what is wrong with the Bill.
The commission might receive a complaint from, say, Deputy Michael McDowell, that there was a conflict of interest that should be investigated in a case such as that involving C & D Foods and the Masris. The commission would then ask if there was compliance with section 14 of this Act. If the Taoiseach has been notified of the proposal by the Minister, the Commission might decide that there is nothing to investigate. The outcome of Deputy McDowell's complaint concerning the granting of citizenship to two Arabs, not residing in Ireland, in respect of a £1.1 million loan to the Taoiseach's company of which he is a 41 per cent shareholder, will be a short reply for the commission that it has investigated the matter, it is fully satisfied that every requirement of the Ethics in Public Office Bill has been complied with and that he should have no further interest in the matter. Two letters will have been written but there will be no investigation, nor can the commission publicise the fact that Deputy McDowell brought the matter before it or that it was amazed at the decision. It is not entitled to reveal any of those facts to the public and it is not entitled to call for an inquiry. It is entitled only to ascertain whether there was compliance with the notification procedure. There is no further right of the public, the press, the media or the complainant to ask whether such action was proper. One does not even have the vast benefit of an investigation by the Tánaiste, the outcome of which is that everything is all right because he has looked at the file. One gets a clean bill of health on the basis of two letters being written. I fundamentally object to that because it has nothing to do with upholding decent standards in public office.
The public wants to know whether it was proper that such a transaction took place. To return to the case to which I referred, if I had not heard about it, I obviously could not complain to the commission. Take a hypothetical case. If a civil servant in the Department of Justice was worried about someone lending £1 million to a business owned by a member of the Cabinet and told the commission that there was a conflict of interest involved and asked it to do something, the commission would check if it was notified and if the Taoiseach was notified. If so, that would be the end of the matter. They cannot criticise what happened. They can merely say that in the case referred to they are satisfied that Ethics in Public Office Bill, 1994 was fully complied with. That is not a safeguard. The commission is turned into a moral whitewash agency in such circumstances.
Far from exposing a dubious decision it is rendered uninvestigable by virtue of giving two letters to two people. The Minister said she envisaged a developmental role for the commission but the commission is not in a position to say to someone who has complied with the letter of the law that they must do something different. The recommendatory powers and the guidelines function is only in relation to the application of the Act and it is not the commission's function to investigate what are, on the face of them, abuses of public office or to say it was unjustifiable for Minister McDowell to award his brother a £1 million contract. The commission cannot say I was wrong to do so. All I must do is notify the Taoiseach and the commission.
I would have more faith in the process if, as in my proposed text of section 14, the notification to the commission was also laid before both Houses of the Oireachtas. In those circumstances there would be public scrutiny of the behaviour in question. What we are dealing with here is a secret process. Bearing in mind the example of recent history in this matter there must be an improvement.
The provisions of the proposed section 15 would require the commission to be furnished with a statement as to whether an office holder had any interest in the matter. I do not wish to anticipate the debate on my amendment to section 14 but the proposed amendment No. 34 would require the commission to cause any statement furnished under section 14 to be laid before each House of the Oireachtas not later than 14 days after it had been furnished to the commission. In those circumstances there would be transparency and any Deputy or journalist could ask what was the decision that Minister McDowell made which benefited his brother to the tune of £1 million and could ask if it was justified. What the Minister has been cornered by her partners in Government into proposing is that the only scrutiny will be a technical one. The commission is not empowered to exercise any value judgment or draw to the attention of the public what it considers to be an abuse of ministerial discretion. That is my objection to it. In the context of granting citizenship to people in exchange for a loan I suggest the public have a right to know. All these matters should be made known publicly. I am trying to be as neutral as I can and not use the debate unfairly to cast aspersions on others but there is a fundamental question of standards and accountability at the heart of this. The mechanism proposed by the Minister will not do anything to counter that.
