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Select Committee on Finance and General Affairs díospóireacht -
Wednesday, 20 Jul 1994

SECTION 2.

Amendments Nos. 5 and 46 are related. It is proposed to take both amendments together.

I move amendment No. 5:

In page 7, subsection (1), line 33, after "Government", to insert "and functions of the office holder as a member of the Government".

Amendment No. 5 is a technical amendment which clarifies that when a member of the Government is carrying out his or her functions as an office holder it also includes his or her functions as a member of the Government. When the Bill was first drafted we thought it was understood that the key function of an office holder who is a Minister is to act collectively as a member of the Government, and this amendment makes that abundantly clear. For example, if a conflict of interest arises in the course of Government proceedings, in accordance with normal practice and Government procedure instructions, that interest will be declared.

I want to tease this out further. How does this amendment mesh in with the new section 14 which the Minister proposes to insert in the Bill?

In what sense?

If the Government makes a decision which benefits one or more members — for example, in the passports issue Commissioner Pádraig Flynn seems to be of the opinion that it was a Cabinet decision but, due to confidentiality, we will never know whether it was — how does this work and to whom do they report?

First, the member who has an interest will step aside, in accordance with normal Government procedure instructions. It will be normal Government procedure for a Minister to draw the attention of his colleagues to an item on the Cabinet table in which he, she or a family member has an interest and for him or her to withdraw. That is not a constitutional or statutory requirement but it will be normal practice. In the case of something coming before Government in which a Cabinet member has an interest, under the new section 14 a declaration will be made to the Taoiseach — this is normal practice at present — and the commisssion.

I do not follow the Minister's comments. Is a Cabinet member expected to step aside and not take part in a decision in which he or she has an interest?

In the normal course that would happen, but there may be exceptional cases where it would not.

How would we know an exceptional case? Will the Minister indicate what constitutes an exceptional case?

In drafting the Bill we were careful not to cross anybody's statutory or constitutional functions. We do not propose to prevent Ministers from exercising their functions as members of the Cabinet, but if something in which a Minister has an interest comes before Government that person would be expected to advise his or her colleagues of the details. Generally speaking, in such circumstances they would not take part in the discussions on the matter or seek to influence colleagues. As I am not a member of the Cabinet I do not know what would constitute an exception to that general practice. Unless the Government decides otherwise, the Cabinet member concerned should not take part in discussions on the matter, vote on it or seek to influence the attitude of colleagues; that is Cabinet procedure instructions.

Are those instructions published or is the Minister of State revealing only a portion of them?

I do not know if they are published, but that would be the normal procedure.

Is it not true that when persons are appointed to the Cabinet they must notify the secretary of the Government if they have an interest in a particular matter, including shareholdings, directorships and so on? The secretary of the Government then deals with the matter. That is my understanding of the matter.

Are the procedures for Cabinet similar to those for the Government, to which the Taoiseach referred to in the House recently in response to a parliamentary question? He claimed they have not been published, but that where a member of Government has a material interest in a decision about to be taken by Government, that officeholder must bring it to the attention of his or her colleagues. Are similar procedures involved in the controversial case to which Deputy McDowell referred? I tabled a parliamentary question seeking to establish if the Taoiseach had brought to the attention of his colleagues the fact that he had a material interest in a decision that was about to be made. Are those procedures made public? Will the Minister seek advice on that matter? If they are available to the public, it would be helpful to establish how they interact with the Minister's proposed amendment and the declaration requirements in section 14.

I understand they are not published. My amendment seeks to clarify that there is not one set of departmental rules regarding declaration of material interests which apply to, say, the Minister for Education when awarding a contract to build a school and a different set when she deals with matters at Cabinet level. Most incoming Governments draw up their own procedures and establish ground rules from their first day in office. Successive Governments have been at pains to establish ground rules for Cabinet business. I understand the present Cabinet procedure instructions date back either in whole or substantially to 1983 when they were revised by the then Taoiseach. They deal with issues relating to conflicts of interest and, as the Taoiseach said in reply to Deputy Rabbitte's parliamentary question, they require that Ministers inform the Taoiseach of business interests. It is normal practice for Ministers to step aside from the day-to-day running of business in which they are involved. This Bill does not deal with Cabinet procedure instructions, it deals with the notification of potential conflicts of interests. This amendment seeks to clarify that simple rules in regard to notification of potential conflicts apply to Ministers exercising their functions as members of a Cabinet and to the exercise of their functions in their Departments.

I appreciate what the Minister is trying to do, but is she saying that Cabinet procedures vary from Government to Government? I recall a Taoiseach requiring his Cabinet Ministers to give an undertaking that they were not members of any secretive society before taking up office because of the influence that they could have on sensitive legislation. Is the Minister saying the procedures to which she adverted change from Government to Government, in other words, that is within the compass of each Government to vary the procedures as it thinks fit?

To be fair, all Governments have operated under a set of Government procedure instructions. From time to time, those have been examined by the Government or the Taoiseach of the day and it is my understanding that any revisions have involved tightening up and clarifying them rather than loosening them. The practice has been to tighten up and clarify the appropriate standards of behaviour in Cabinet, which are clearly laid down in the Cabinet procedure instructions.

The Minister told us at some length about the importance of what she described as Cabinet procedure instructions in relation to the conduct of Ministers. Those instructions could be made available to us because, since the Minister quoted from them, they do not appear to be confidential. Will they be made available to us? It is my understanding that instructions of this nature are by and large handed down from Government to Government, irrespective of political complexion, and altered when necessary by officials in the Civil Service. My main concern relates to the availability of this documentation to the committee so that we can make a judgment on the matters raised by the Minister.

I presume this applies also to the spouses of Cabinet members. The son or daughter of a Minister may have an interest in a property or consortium and not inform his parents because they might not be favourably disposed towards the investment. If after 12 months or so, the Cabinet became aware of the matter, what would be the Minister's position? The perception might be the Minister knew of it, but that might not be the case. This is a difficult area. What is the position of the Minister, a former Minister or a future Cabinet Minister in such a case? Such cases would put such members in a precarious position. If, say, a son of mine over 18 years of age wished to set up his company I might advise him against it as it might not be a good investment. However, if he made the investment and did not inform me about it, am I expected to be his master and to be like God and know about it? When such an investment comes to light in six or 12 months or in two years' time, it could be said that the son's parents knew of the beneficial interests but did not disclose them and it would not be possible for them to prove they were unaware of their son's investment. I have grave reservations in that regard. I do not have a problem with the provisions in the Bill in regard to disclosing my interests. If I did not have other interests, I probably would not have been a Member of the Dáil for as long as I have been. I would not have been able to afford to live solely on the paltry salary of £1,500 per year which I received when I was first elected.

This provision does not and will not apply to me. It applies to members of the Government and we are their guardians on this important Bill. It is my duty to point out that where people say a member knew of beneficial interests but did not disclose them and is acting like simple Simon, it would not be possible to prove he or she was unaware of such interests. How do members clear themselves in such cases? I outlined how a member may be unaware of a position in which his son or daughter may be involved. Many parents find their sons or daughters do not always agree with them. This may result in members being unaware of an investment in which their sons and daughters may be involved which may have serious consequences in that undue bad publicity could have a damaging effect on a company in which they have invested, its employees and others. What is the position in such cases?

The standards of politicians across the political divide for the period I have been a Member have been very high. Compared with other parliaments our standards are extremely high and our politicians have worked hard over the years. I am concerned about the inclusion of spouses in this provision.

It is now proposed that the word "function" when it applies to an officeholder will include a function of that officeholder as a member of Government. In other words, if a member of the Government carries out an action while a member of Government that is now to be viewed as a function. Regarding the phrase, "an officeholder who proposes to perform a function of his or her office", does a member of Government who does not propose to take part in a discussion on his or her enrichment intend to perform a function as a member of Government in relation to that?

Two points have been raised by the Deputies. We gave great consideration to the point raised by Deputy Connolly when drafting the Bill. We were careful to strike an appropriate balance between the need to ensure public confidence in the mechanisms of the Bill, to ensure it did not include escape clauses and to protect the legitimate privacy and rights of parties, such as spouses and children. Our definitions were carefully chosen to strike that appropriate balance.

Regarding Deputy McDowell's point about proposing to perform a function, we tabled amendments which deal with an active act of omission in cases where people who would normally be taxed are actively taken out of the tax net. We extended our definition of performing a function to cover such cases. I can check what is precisely involved between now and Report Stage and this will cover somebody who proposes not to exercise a function of their office and is stepping aside from the decision, as distinct from actively refraining from doing something. Our definitions and amendments deal with an active refraining from doing what one would normally do but not necessarily with stepping aside. I can look into the matter between now and Report Stage if further clarifications are needed.

I would prefer to deal with it now rather than on Report Stage because I want it clarified. If a Minister proposes to do something at Cabinet level, I understand that the Minister's amendment requires notification of such proposal. If Ministers decide to participate in decisions at Cabinet level and go on holidays while issues are being decided, such Ministers are not obliged to notify their colleagues; they can be passive recipients.

It is normal procedure at present that if something comes up at Cabinet level in which members have an interest they would formally notify the Taoiseach and their fellow Cabinet members in relation to that process. We would envisage in a case where they are stepping aside from the decision that they would inform their colleagues of their interest but in cases where they wish to remain neutral——

That is what worries me.

——that is a different context. Ministers in the normal course of their functions may have to act positively to give people contracts or not act to avoid taxing people. In cases where one would not normally make a decision one would not be either actively refraining from or positively doing so.

Can I give the Minister an example?

Sorry, Deputy Connolly.

On a point of clarification, where does the interest of a spouse, as far as the Minister of the day is concerned, start and end? This is the nub of the matter. I am thinking of a future member of the Cabinet being placed in a very precarious position. Suppose a Minister and his wife decide to go different ways — I realise this is a highly technical area — what is the position then? I want to be clear on where the onus will lie vis-�-vis responsibility. I do not want a Minister of the day pilloried by the media and others regarding his spouse’s interest. If he did not know, for the reasons I have given, where does he stand then? Nothing would clear a Minister in such circumstances; it would amount solely to perception. I regret if I am putting the Minister in a spot in this regard but it is better that we tease it out and know exactly where we stand, although it does not concern me at this stage in my career because——

Next week it might.

——I have had my day, a very good one. I have moved on to greener fields but I understand the implications of the provisions of this Bill. I am endeavouring to ensure that Ministers of the day will not be placed in a very awkward position, not of their making. I would go so far as to say that if the media were to take them down that road, it could mean the end of their political career on an issue about which, in good faith, they knew nothing.

Let us say I am a member of the Cabinet and my wife will benefit dramatically by a decision the Cabinet is about to make. I know that the other members of the Cabinet may not know that and I decide to take an annual holiday, go to Orlando or do something useful for the Government, or spend a night in the Waldorf Astoria.

Jealousy.

In my high-minded attitude I will sleep on a couch in the foyer. Nonetheless, I propose to take no active part in this but I have knowledge that my spouse will dramatically benefit therefrom. As I read section 14, I am under no duty to draw to anybody else's attention the fact that my spouse is going to benefit. None of the other members of the Cabinet, unless they actually know my spouse is going to benefit, is under any duty to notify anybody of that benefit. I want to know, now rather than on Report Stage, whether the Minister's amendment actually covers such circumstances.

The more this matter is discussed, the more it becomes clear that we, as a committee, cannot make a proper judgment on this matter unless we know more about Cabinet and Government instructions from which the Minister has quoted. I did request, as I think did Deputy Rabbitte, that these instructions be made available to us. The Minister has not replied to that point.

Deputy Connolly made the point about what will happen if somebody's spouse or somebody's child does not tell them and they are not actually aware of a particular circumstance which could create a material interest. The Bill provides an elaborate structure for investigation of complaints in those type of cases. The Minister concerned, or a Deputy, will make his case to the commission, who can send for persons, papers and records. It will be a criminal offence not to comply or co-operate with the commission's request. Therefore, if something has occurred in good faith I think the relevant Minister or Member would be able to make his or her case very fairly to the commission. The same would apply in circumstances in which a Member is unaware that a relative has a material interest that would be materially and significantly affected by some Cabinet decision. Similarly, if they were unaware that a daughter of theirs held a particular shareholding in a company which would benefit, and they acted in good faith, they then make their case to a Select Committee of the House which will assess the situation and ascertain whether or not they have acted in good faith.

There are reasonable safeguards and protections provided for somebody who unwittingly encounters difficulty. That is why we carefully, after great deliberation, chose the phrase "actual knowledge" in the Bill. We are not asking people who are not themselves public figures to make declarations. The onus of declaration is on the person who is a public figure, a politician, a person holding a public office. It is a very careful line — to strike the balance between the right of privacy of people who are not themselves involved in public office and the legitimate concern to guard against something being undertaken by the back door which would not be acceptable if done by the front door. We have been very careful to strike that balance and have been very conscious of the kind of concerns Deputy Connolly expressed. If there is anything more we can do on Report Stage to address these concerns and that balance we will endeavour to do so. It is something to which we have devoted a huge amount of thought.

Deputy Michael McDowell raised the position of somebody going on holiday.

Not taking part in such decisions at all.

In the normal course of events that would involve somebody making a declaration and getting out of the room. Deputy Rabbitte will be very familiar with this practice in relation to local authorities, where people make a formal declaration of interest, say in relation to proposed rezoning or a section 4, and leave the room.

We are not dealing with that circumstance. We are dealing with an officeholder who knows that, at a forthcoming Cabinet meeting, a decision will be made that will benefit his spouse and he or she decides not to participate and not to be there on that day.

I think the Deputy misunderstood me. I was dealing with somebody at the Cabinet table who says he has an interest and is withdrawing from the proceedings. We would envisage such happenings being recorded in the normal course of events. Reading Cabinet papers is a function of one's office. Therefore I would envisage a member of the Cabinet alerting their colleagues in the normal course of events. If you simply happened not to be around I would not envisage that one would have to have one's Cabinet papers sent on in case they contained something in respect of which you needed to make a declaration. Obviously, it would not influence one's Cabinet colleagues if one was unaware that something that would constitute a material interest was coming up.

This is crucial. Deputy Currie has asked if we can see these standing instructions for the Cabinet.

I think they are identical to what prevailed when Fine Gael and the Progressive Democrats were last in office.

I do not have them.

It is not my job to publish or not publish them, but I will certainly convey the Deputy's concerns to the appropriate authority.

Does the Minister accept the point — she has quoted from these instructions — that we cannot make a judgment on this amendment she proposes without an opportunity of considering this documentation? Presumably it is not confidential since the Minister has already quoted from it.

Section 14 meets the concerns regarding Cabinet Ministers who are involved in a matter involving another Cabinet Minister, that those declarations would be a matter of record and would go to the Taoiseach and the Commission. The fundamental public concern raised by the passports issue is dealt with in section 14 and its amendments. This amendment clarifies for the benefit of a person reading or operating the Act that the procedures in section 14 do not simply apply to Cabinet Ministers when they are running their Department but also apply when they are around the Cabinet table.

That is why we need the instructions.

The reference to the instructions was about codifying established practice, but we will be turning into law what has been established practice of making a declaration at the Cabinet table. Deputy McDowell has made a number of points in relation to people deliberately absenting themselves and so on. I have tried to reply to them as best I can without having full notice of the questions. If there are any other issues similar to the points raised by Deputy McDowell, we will consider them and, if appropriate, come back and give any clarifications needed on Report Stage.

Further research into this issue is crucial to the efficacy of this Bill because if the example which I have just pointed out is not covered you can drive a coach and horses through this Bill to start with. Likewise, I have to support what Deputy Rabbitte and Deputy Currie have said. Whenever a point is made on this side of the House, we are told there are other procedures in place which cover it but I am not a member of Cabinet and I have not seen nor can I look through Eoin McNeil's papers in UCD. There is nothing in my family home which lays down the procedures for Cabinet. Does the Minister have a personal objection to publishing the document from which she quoted?

I have no objection one way or the other. It is not my function to publish these instructions. That is a matter for Cabinet, of which I am not a member.

Does the Minister not consider it would be reasonable for them to be laid before the Oireachtas if they are the procedures that guide Cabinet members?

As I said, I have no problem with their publication, but it is not my decision.

Does anybody else have to your knowledge, actual or implied?

I am not a member of Cabinet. It is obviously a matter for the Cabinet in the first instance to consider whether they should be published. I was merely trying to clarify that what we are dealing with in the Bill is actually codifying something that is not new in terms of practice.

Will the Minister give us an assurance that at the earliest possible moment — maybe tomorrow when this committee meets again — she will have a discussion with whoever is responsible on the request from members of the committee that these instructions be made available and report back to us on that question?

I certainly will raise it and I will come back as soon as I possibly can.

I ask the Minister to have another look at the issue I raised in regard to spouses.

If something else needs to be done, we will have a look at it.

Another point which arises out of our discussion is that, as I understand it, the Supreme Court has said it is not possible to reveal what happens in Cabinet and even the Cabinet itself is not entitled to excuse a member to reveal what happens in Cabinet, that this is not a matter of law but of constitutional privilege and duty of confidentiality. In this context, how is it that somebody who proposes, at a forthcoming Cabinet meeting, to act in a particular way is obliged to notify the commission? Will these notifications to the commission be the subject of confidentiality? For instance, will the public know or find out from the commission's report at the end of the year that Minister Michael McDowell proposed at one stage, however successfully or unsuccessfully, to do something in relation either to himself or another member of Cabinet? Are we going to read about this, or will we be told that the constitutional confidentiality obligation prevents anybody from disclosing this and we will never hear about it?

I am sure Deputy McDowell appreciates more than most that the Constitution overrides anything we put into statute.

The Minister is saying at the same time that it must be advised to the commission. Every Member here will become more familiar with this subject over the next couple of weeks, and probably months. When the matter of Ministers refusing to answer the most simple questions on the basis of pleading confidentiality was tested, that right was upheld, but this Bill, if the Minister is to act as proposed therein, would seem to breach that. If the Constitution overrides it, is the measure constitutional?

Or is it ineffectual? Will we be told that in so far as it imposes on a member of Cabinet the obligation to notify in advance to the commission what he or she proposes to do at a forthcoming Cabinet meeting, either that report to the commission will be suppressed before it gets to the commission or will be suppressed in the hands of the commission? What kind of guarantee is that for us? Unless the Minister sorts this out, this is all baloney. If the consequence of the Supreme Court decision is that none of this will ever be made public under any circumstances, then it is of no interest to me whatsoever that the members of the commission received a sealed envelope which they were not allowed open, or alternatively, that they received information they were never entitled to disclose. What is the point of doing this? The corollary of all this — this is the worring aspect — is that if one wants to do something suspect or underhand, all one does is move it into the Cabinet arena and then surround it with confidentiality and say there is no obligation to notify. This is the crucial issue.

The Minister is now tabling an amendment saying that a function of an officeholder qua member of Government is now reportable and disclosable and the interest must be notified in writing to the commission. I am putting to her a proposition which I think is central to this, that is, if the overriding nature of the Constitution is to require such information to be suppressed, we are talking about a fairytale. It will never be done. It is crucial to this Bill because if the effect of the Supreme Court decision is that we may never know anything about any of these matters, we may as well chuck this section of the debate now.

This goes back to the distinction drawn between officeholders and Members. As the section stands the only obligation on the Taoiseach when a decision is being made where he or a connected person has a material interest is to notify the commission; in the case of a Minister to notify the Taoiseach; or in the case of another officeholder to notify the commission. In the kind of case that Deputy McDowell has posited, is it permissible to notify the commission and if not, what is the point of the legislation? If it is not visible, transparent and knowable from the point of view of the rest of us, the entire exercise is not of any value in the first place. If the requirement merely is to advise the Taoiseach that I or somebody connected to me has an interest in a decision that we at Cabinet are about to make and the Taoiseach says lets get on with it, there is no point.

In addition to providing the information on the instructions which the Minister has promised to make inquiries into, she might also take the opportunity of consulting with the Attorney General, if he can be found, on the constitutionality of this matter.

There is a series of areas where material interests could possibly arise for a Minister. In this Bill we deal with a situation where one Minister asks another Minister to do something on his or her behalf. Deputy McDowell made the point about Ministers absenting themselves but putting it up to their colleagues to do something. Those situations are covered because once a Minister asks another officeholder to exercise a function of office on his or her behalf or on behalf of a member of his or her family, the provisions of section 14 swing into place. Second, in the case of a Minister proposing to do something in his own Department, where 90 per cent of ministerial work is done, exercising a function of his office which would confer a material benefit on himself, a connected person or another Minister, the other Minister's interests will be a matter of record because under the Second Schedule they will be listed on the register of the House. The performing Minister will be required to make a declaration. I would envisage in the normal course of events, he would go to the Taoiseach and make a formal statement, such as that he is proposing to award this contract to his brother. If the Taoiseach is not satisfied that there are compelling reasons why the brother should get the contract as distinct from others who tendered, he will say not to do so. If he should do it, it is a sacking offence. That is the way it would be dealt with.

Deputy McDowell has raised an interesting point about the legality of sending the commission something which is covered by the declaration on Cabinet confidentiality. We will have further consultations with our legal representatives and I will come back to that point on Report Stage.

Will the Minister of State clarify the powers of the commission? Will it have the authority to call in spouses?

With all due respects, I am not a constitutional lawyer and I doubt if the Minister can answer that question directly. She has said she is prepared to seek further clarification on the points raised by Deputy McDowell.

I would like further clarification. If a spouse has to come before the commission his or her financial and personal interest would be disclosed, even though the person has no interest in Dáil Éireann. Who will be called before the commission? The situation might arise where sons and daughters were involved and they might be called to explain their involvement. We are getting into a highly complex and complicated area. Some Members have said they do not understand the Bill but everybody understands that it is complex. We have spent many hours on the opening paragraphs of the Bill and at the rate we are going we will not be finished by St. Patrick's Day.

I am glad to inform the committee that I never spend St. Patrick's Day away so I will be around.

Deputy Connolly asked if a spouse could be called before an investigating committee, to which the answer is yes. In the case of a son or daughter living away from home who has an investment the parents do not know about, the normal situation would be that the commission would invite the son or daughter to appear before it and ask if the father was aware of it. If he or she replied that they never told him about it, it would be quite reasonable that he would not know about it. Those hearings would normally be held in private. The commission would then report to the Dáil. The Select Committee would decide on the appropriate action. The commission might find the Minister had acted in good faith, based on sworn evidence given by the family member concerned that he or she had not informed the relative. There are situations where people are not in touch and parents may not know every detail of somebody's business dealings, particularly if they have a lot of business dealings, or the offspring might be estranged from his family. We have proposed a common sense way of dealing with it. Ultimately the judgment on whether something should be done and whether a Minister should be censured is a matter for his peers or the Select Committee of the House. I am sure that members of the Select Committee will see that they too could be in that position and will take a common sense view.

Will the spouse be subject to subpoena?

If the commission has full power to call witness, I would envisage that in a situation where there was some doubt, the spouse would only be too happy to come and clear the partner's name.

Will the spouse have to make a full statement of all the financial dealings and will that be laid before the Houses of the Oireachtas?

No. We were very careful to strike an appropriate balance between the spouse's right to privacy and the right of the public to be assured that somebody in a position of public trust was acting in accordance with the requirements of that position. We have dealt with this matter in an extremely careful way.

It may be laid before the House.

Normally a report will be laid before the House only if it can be proven that there has been a contravention of the rules. This is not a backdoor way of listing every asset owned by a spouse. The report will say that the spouse had a row with her husband and did not tell him that she had a certain asset or that he was blissfully unaware that she had an asset in which a material interest would arise, and that this was done in good faith.

Am I not correct in saying that the House can request a report to be laid before the Houses of the Oireachtas under an order of the House?

The matter has been looked at having regard to the kind of concerns the Deputy has expressed. If there is some angle we have not covered we will come back to it on Report Stage. I share the concern about the need to strike a balance between the right to privacy of people who are not in public life and the need to have an effective and workable Bill.

The Minister said that the Taoiseach may decide a contract should not be awarded to a relative of a Minister as, politically speaking, it may be too close to the bone. That would be grossly unfair to the person who made a legitmate tender and who was capable of carrying out the contract. What knowledge or expertise would the Taoiseach of the day have to decide whether a tender for a substantial contract was a legitimate tender? He may have to bring in outsiders to evaluate it.

I was trying to give an example of how I see things unfolding under the procedures. A Taoiseach appoints his Ministers and obviously he has to be satisfied that their behaviour is ethical and that they are living up fully to the standards expected of them. This is why under the new section 14 the officeholder must submit a report to the Taoiseach. To take an analogous situation, public officials are told not to act where there is conflict of interest unless there are compelling reasons. In rare cases a public official may award a contract to his brother for compelling reasons, for example, his brother may have submitted the lowest and best tender. In those cases public officials have to satisfy the relevant authority that there are compelling reasons for doing this. If they awarded contracts to their brothers willy nilly it would be a sacking offence. That is the standard of behaviour laid down for public officials.

In the case of the Taoiseach and Ministers, it is not proposed to cut across their statutory or constitutional responsibilities, but one would expect similar standards of behaviour to apply to them. For example, they should exercise a function of their office in a matter in which they have a material interest only after they have informed the Taoiseach and the commission, which they will be legally obliged to do under section 14. I cannot envisage any Taoiseach remaining silent on being so informed, rather he would tell the Minister concerned whether his behaviour was appropriate or otherwise. In a situation where a Minister proposes to give the contract to his brother for very good reasons, one presumes that those reasons would be part of the file sent to the Taoiseach and the commission. It is not proposed to debar a Minister from awarding a contract or to debar his brother from getting a contract if he is legitimally entitled to it. Rather we are setting down procedures which will give people——

I am not only referring to a brother or sister, there is also the extended family. The proposal to debar the in-laws of a Minister tendering for a contract is going too far and will give rise to the suspicion that these people are not to be trusted. I do not accept such a proposal.

That is not the intention of the section.

The Taoiseach of the day may decide that something is too close to the bone, politically speaking, and that a contract should not be awarded to a Minister's in-laws.

One would envisage that the Taoiseach of the day would want to be satisfied that the highest ethical standards were being followed by Ministers. On being informed about a matter, presumably the Taoiseach of the day will advise appropriately. This is how I envisage the provision working in practice. I was merely giving an example.

Given the complexity of and difficulties associated with this issue, we may have to debar spouses from having interests of any kind and pay them a salary from the public purse. When one starts curtailing people's rights they become part of the system——

We have already turned in-laws into outlaws.

If the issue cannot be solved one way it may have to be solved another way.

Future Ministers will not be able to have any relatives. We could be creating a very dangerous precedent.

It is important to note that Deputy Walsh has seriously proposed that the spouses of TDs should be paid salaries.

I have put down an amendment which proposes that the provisions should also be extended to cohabitees.

We have had a very full debate on this amendment.

Section 2 deals with a very complex matter which may be of concern to spouses. I have grave reservations about this far-reaching provision.

If that is the case the Deputy should oppose it.

I have always given my view on issues and obeyed the party Whip. I am now like Tadhg, an dá thaobh. I never blew with the wind and the record will show that when the going got tough I stood up and was counted and, unlike others, did not run away. I have been able to change certain provisions in Bills and I want to thank the Minister for agreeing to consider the points I have raised.

Is it legitimate to tender an amendment to this committee when the Minister does not know if it is constitutional? What effect will it have? This is not merely an interesting point for a lawyer to debate. A proposal to Cabinet must be notified to a third party who is not a member of Cabinet and can, in turn, be notified to the Dáil even if it does not succeed. If, say, my efforts to corruptly enrich members of my family were voted down by the outraged majority of the Cabinet I would be obliged to give notice in advance of my intention and the commission would find out that I attempted this and did not get away with it. Will the Minister address this issue? Before making a decision on this amendment, we must know if it is constitutional for a commission to be notified of intended Cabinet business, of whether a Minister participates in the decision and if a decision was taken with counter proposals in existence. I would be very surprised if it is constitutional to inform a commission of those facts.

Even if the Attorney General advises that is possible, I am deeply sceptical about whether we would ever hear about it in the Dáil. We would be told that for technical reasons, it would be possible to inform the commission, but nobody else. Those facts will not be published. If it is impossible to inform the commission of Ministers' intentions the Cabinet is, effectively, falling out of the ambit of this Bill. The original section 14, drafted by the Attorney General's office, stated that a Minister had to inform only the Taoiseach. That would not breach the confidentiality rule.

Is the Deputy saying it is unconstitutional?

No. As the Bill was originally drafted — I objected to it because I did not believe it was an adequate safeguard — the Minister was obliged to inform only the Taoiseach of his intentions. It would then be up to the commission to find out whether he or she failed to inform the Taoiseach. The Government is now bringing forward an amendment saying that outsiders have to be informed not only of successful but also of unsuccessful proposals by members of the Government if they come within the ambit of this Bill. If that is unconstitutional, we will never hear about it and this legislation will be a dead duck so far as the Cabinet is concerned. This is crucial. Unless we are clear on this, we might as well stop discussing the Bill now. If the Bill does not apply to members of the Cabinet and the rest of us have to sign all sorts of transparent registers about our activities, the whole issue will degenerate into a farce.

It would be farcical if a group of people which has the power and clout to make decisions — and for whom ethics must be legislated — is exempt from the operation of this statute. We might as well set up an ordinary county council register of interests for members.

Is the Deputy saying the Bill is unconstitutional?

The Minister has not assured us that it is constitutional. I believe, on balance, it is unconstitutional.

As the Minister is not a constitutional lawyer, it is unfair to expect her to answer that question now. Suppose Deputy McDowell's submission is correct, would the Minister acknowledge that the central purpose of the Bill would be undermined in so far as it is members of the Executive in our parliamentary democracy who have the capacity to make decisions and to dispense influence, not backbench Members of the House? If the small number of officeholders who can make such decisions are exempt, by reason of Cabinet confidentiality, from having such decisions scrutinised, the purpose of the legislation would be undermined, regardless of the merits of the arguments put forward on Deputy Currie's amendment about the title of the Bill.

I have read about backbench MPs across the water being rewarded for questions for which one would be very lucky to get a pint of Guinness in this jurisdiction. This is a question of somebody holding a Cabinet office. If a decision in respect of Cabinet confidentiality prevents a matter from being passed on to the commission, this issue is entering a cul de sac. Unless we are going somewhere what is the point of this discussion? To tell us that a Minister brought the matter to the attention of the Taoiseach of the day is of no interest to us. The matter must be validated and open to scrutiny; in the Minister’s own words, it must be open and transparent. If that is prevented constitutionally, we are having late sittings in the middle of summer without any purpose. Does the Minister accept the logic of that argument, without prejudice to the advice she will get on Deputy McDowell’s contention?

As Deputy Rabbitte is aware, I am not a constitutional lawyer. Deputy McDowell raised legal points on which we will seek further advice and come back at the appropriate time, if any of them requires further elaboration or clarification.

The Bill is more onerous on officeholders because we recognise that they wield more influence in our society and system of Government than Deputies of the House. Officeholders are required to fulfil all the requirements of Part II of the Bill in their capacity as Deputies as well as the requirements laid down for answering questions, speaking in the House and being questioned about public business for which they have statutory responsibility. They are required to declare interests in the same way as other Members and are subject to the additional requirements of Part III of the Bill. My amendment seeks to ensure that we do not exempt Cabinet work and that the same procedures apply to written notifications and issues coming before Cabinet and require written declarations. This kind of requirement in Cabinet procedure instructions has been adopted by successive Governments. I promise to come back to the committee as soon as possible to clarify the questions raised in relation to confidentiality.

In the meantime, what are we supposed to do? I understand why the Minister is not able to answer questions relating to the constitutionality of the matter. She said she will seek further advice and come back to us, but what are we supposed to do in relation to this amendment? Are we to vote for it in the absence of such information? Is it fair to put members of the Government parties in the position of voting for this amendment in circumstances where the Minister admitted she does not know the answers to questions raised? Surely a decision on this amendment should be deferred pending additional clarification.

I was absent when the Bill was discussed last week, but I followed the debate with interest. I cannot help thinking that the introduction of the Bill is somewhat like using a sledgehammer to crack a nut with regard to the questions asked and the type of protection it is supposed to afford. Previous speakers have elaborated on its proposed effects. What does the Minister mean by an appropriate time? The Ethics in Public Office Bill has been heralded for a long time. It has had a long gestation period. I imagine there was a good deal of consultation on legal interpretations, etc., in its drafting. From the point of view of a layman and a full-time politician it would appear what Deputy Currie said is true. Maybe full-time politicians have not probed this Bill as much as people with other interests and I may not have done so as scientifically as others, but from the point of view of a layman——

The Deputy is not doing too badly.

——surely it is not proper to vote on an amendment such as this when the Minister has said she will have to come back to clarify what it means at an appropriate time. What does the Minister mean by an appropriate time and what type of consultations on legal interpretations went into its drafting?

Is the amendment No. 2 agreed to?

The Minister has not responded to my question.

Amendment put.
The Select Committee divided: Tá, 18; Níl, 8.

Ahern, Michael.

Mulvihill, John.

Ahern, Noel.

Nolan, M. J.

Brennan, Mattie.

Ó Cuív, Eamon.

Broughan, Tommy.

O'Keeffe, Batt.

Connolly, Ger.

O'Leary, John.

Ellis, John.

Penrose, Willie.

Fitzgerald, Eithne.

Smith, Brendan.

Kenneally, Brendan.

Upton, Pat.

Kenny, Seán.

Walsh Eamon.

Níl.

Boylan, Andrew.

Finucane, Michael.

Connor, John.

McDowell, Michael.

Currie, Austin.

McGrath, Paul.

Doyle, Avril.

Rabbitte, Pat.

Amendment declared carried.

Now that this amendment forms part of the Bill, when will we be notified that the Government has been legally advised that it will be effective and what the legal effect of it will be?

This is an issue we can return to at Report Stage.

Before it leaves this place I want to know whether this Bill is worth anything. I do not want to deal with it on Report Stage.

It intermeshes through various sections.

Section 14 means nothing unless the Constitution permits the commission to be notified of intended actions within the Cabinet.

I would like to know what we are spending our time at and whether it is worthwhile.

We have finished with amendment No. 5 to section 2.

We may have finished with the Bill completely unless we get——

We come to amendment No. 6 in the name of Deputy Rabbitte. Amendments Nos. 6, 21 and 23 are related and may be discussed together by agreement.

I move amendment No. 6:

In page 7, subsection (1), line 45, after "Éireann" to insert "including a member who is also a Minister of Government or a Minister of State".

I am not sure why they are related because a very different argument applies. There are specific arguments to be made for amendments Nos. 21 and 23 that are quite different and distinct. The argument which I am seeking to make in amendment No. 6 is purely for clarification. Excluding a member who is an officeholder in certain areas of the Bill is an entirely different matter.

Can we discuss amendment No. 6 by itself? We can get to the others later.

We have agreed to take them together.

We are discussing whether we agree.

All three amendments are mine. I am saying that the excision of "other than a member who is an officeholder" is an entirely different issue. There are several areas of the Bill where "other than an officeholder" has a different meaning. My amendment No. 6 merely seeks clarification.

If Deputy Rabbitte wishes to have them taken separately I have no objection.

Thank you. That is all I want to know. I am seeking clarification here. I want to hear what the Minister has to say on the definition that "member" means a Member of Dáil Éireann or a Member of Seanad Éireann. I am seeking to insert "including a member who is also a Minister of Government or a Minister of State". I raise the point because in Part II headed "Members" and Part III headed "Office Holders" a different regime applies. On the matter on which we have had the discussion, if one looks at investigations by committees, for example, one finds that they exclude an officeholder. I do not understand why a Member of the House who happens to be an officeholder cannot have a complaint made about him or her in their capacity as a Member investigated by the committee that investigates complaints against Members. A distinction is being drawn there. It reverts to this central division in the Bill as between officeholders and ordinary Members. I am putting it no stronger than seeking clarification from the Minister on whether it is necessary to make it clear in the definition, so that confusion should never arise in the future, that "member" means a Member of this House whether a serving Minister or not. I know that is the Minister's intention but it seems desirable that it should state that in definition in case there is any doubt.

What is provided in Part III is an additional regime for Ministers and Ministers of State over and above their obligations as individual Members. The term "member" includes an officeholder unless it is otherwise specified. Amendments Nos. 21 and 23 were being taken together because they refer to cases where officeholders are treated differently. An alleged contravention on the part of an officeholder in the first instance falls to be investigated by the commission. We would consider that to be a tougher regime.

Could he or she not offend in respect of his or her membership of the House?

We would consider contraventions by Ministers to be worse than a contravention by an ordinary Member, accepting the point the Deputy made earlier that one should have a more onerous or tougher regime for Ministers than for ordinary Members of the House. In those circumstances any alleged contravention by a Minister would fall to be investigated, in the first instance, by the commission, whereas an alleged contravention by a Member will be judged by his or her peers in a committee of the House. That is the distinction being drawn.

It is perfectly conceivable that the alleged contravention could take place by a Minister as an ordinary Member of the House. For example, I know of a circumstance that occurred in the not very distant past when such a contravention was alleged and the Minister in question argued that he was making representations as an ordinary Member of the House. It is a situation which one could see arising many times, a Minister acting in his capacity as an elected Deputy seeking to do X, Y or Z. In that situation he ought to be investigated by a select committee of his peers.

Under the regime which will be put in place an alleged contravention by a Minister, whether in his capacity as an office-holder or as a Member, will be investigated by the commission. This will be a tougher regime. The reports of the commission will be presented to the Select Committee of the House who may decide on sanctions which may be imposed by the House. Therefore, they will go before the commission whose report will be presented to the House and their peers can judge them on the basis of the commission's report.

Does this not raise again the constitutional issue to which Deputy McDowell referred? If the Select Committee will be able to investigate a complaint against a Member of the House that is fine, but if he is put in the category of officeholder and if the constitutional point is correct then we will never know. There is an area which is shut off from scrutiny.

If there is a contravention it will be investigated by the commission whose reports will be presented to the Select Committee.

Will a select committee be able to investigate whether a Minister did or did not notify the Cabinet?

No, the commission will carry out investigations in relation to officeholders. What we are talking about is an additional regime. Members who are officeholders will have to comply with all the requirements under Part II and the more onerous requirements under Part III. The point the Deputy is making in amendment No. 6 is covered by the definition because a Minister or a Minister of State will be a Member of either House of the Oireachtas.

I fear that I may not be making myself clear. Where a complaint is made against a Member of the House who happens to be a Minister there is a grey area as to whether the complaint relates to the Minister as a functioning TD or as an officeholder. It may be convenient for the person concerned to wear either hat as it suits him or her in rebutting the complaint. A distinction should be drawn between the Minister as an officeholder and as an ordinary Member of the House. If it is adjudged that the complaint relates to the performance of his or her duties as a Member of the House, like the rest of us, he or she should be open to the same procedures. If it relates to the discharge of his or her duties as a Minister it is proper that it should be investigated under the additional regime provided for in Part III of the Bill which applies to office holders. It is an important distinction and it would obviate the difficulty that Deputy McDowell envisages in respect of officeholders. If an officeholder will be able to plead that his lips are sealed and the Constitution states that he dare not disclose anything which goes on at Cabinet, that will be the end of the matter and there is no point in pretending otherwise. With all due respect to the eminent persons who will comprise the commission — even if they will include senior Members of the House such as Deputy Connolly in due course — there is absolutely nothing which they will be able to do to get behind it because they will be constitutionally prohibited from doing so.

Where a Minister makes representations on behalf of a person, company or group in good faith and there is a favourable outcome — in other words approval is issued — is the Deputy saying he acted improperly or that the commission or the House may decide that he did?

I am not drawing any conclusion. It is perfectly legitimate for a Minister to function as an ordinary TD. Because he is a Minister does not mean that he no longer discharges the duties of a TD in certain respects. On the question of whether he acted properly, if the matter ever arose and if it were contested, it would depend on the facts of the case but by pleading that he did it as a Minister when it was manifestly a decision as a Deputy he would be sheltering himself from the provisions of this Bill if the constitutional question raised by Deputy McDowell applies. If a complaint is made against a Minister as an ordinary Member of the House it should be investigated in accordance with the procedures which apply to ordinary Members of the House. There will be two different regimes — the Select Committee which will investigate any charges made against ordinary Members and the commission which will hear complaints against officeholders. If a complaint is made against a Minister or a Deputy it should be investigated in the first instance by the Select Committee.

If that is the case, will a Minister not find himself in a difficult position? Will he not be very cautious? Will he be able to do anything at all and will his hands be tied behind his back?

With all due respect, I am not in a position to deal with the point the Deputy has raised, although the Minister may be able to clarify the position.

The constitutional points raised by Deputy McDowell on the last amendment are not as wide as people seem to think; we are talking about a narrow situation which we can cover. I will investigate these points and return to them at the appropriate stage.

The position is that Ministers will have to meet all the requirements in their capacity as Deputies or Senators. They will have to observe the guidelines and requirements laid down in Part II which apply to Members. They will be subject to any sanctions proposed by the Select Committee if there is a contravention. There is no question therefore of Ministers being subject to less onerous requirements; in fact, they will be subject to significantly more onerous requirements. It is appropriate that any alleged contraventions by Ministers should be investigated by an independent commission without any suggestion by an outsider that because of the party political composition of the Select Committee, they would be given a soft ride. It is very important that the more onerous regime of investigation by the commission should apply in the case of Ministers. I understand Deputy Rabbitte's concerns that we may be trying to go lighter on Ministers than on Deputies, but that is certainly not the intention of the legislation. I do not think that is the effect of the way it is drafted, but if there are any points that arise out of the discussion which we need to clarify, I will be happy to do so on Report Stage. I am happy that we are setting up what is a more onerous regime for Ministers.

I accept that the point I have raised about the issue of Cabinet confidentiality does not cover every aspect of the Bill, but it does cover activities done or proposed to be done in Cabinet. This is central to the Bill, because if they are in any way restricted from being reported to the commission, it enables matters which would otherwise be covered by the Bill to be covered up by bringing them into Cabinet and then keeping them absolutely secret from any of us. For example, a Minister who wants to do something can propose that the Cabinet in its entirety approve that deal, and in those circumstances it will not be reportable on to the commission. It would have very wide implications if it allowed any decision to be moved upstairs to Cabinet and then suppressed as a result. I appreciate that the Minister will get advice on this but, having regard to the doctrine of Cabinet confidentiality, would it be possible for a Minister to reveal to the commission the proposal put forward by himself or another Minister at Cabinet, the decision made at Cabinet which relates to a material interest of his or herself, and in that context to reveal whether a person had voted one way or the other on a decision at Cabinet which related to himself or herself? Those are the issues which are crucial. The reason I am being slightly disorderly, Chairman, is to make sure that——

I am glad you admitted it.

——when the Minister comes back with her advice she covers the implications of all the issues. There is no point in coming back with a specious answer which avoids some of these issues. We must have a fair and square indication of whether the Cabinet confidentiality——

I think Deputy McDowell realises quite well that the Supreme Court ruling on the beef tribunal is that the Minister of the day need not discuss anything that came from Cabinet.

That is our point.

There has been a ruling on it.

If that is the case——

That is the case.

As I understand the Supreme Court ruling, it was not only that he need not do so, but that he may not do so, which is much more radical. If that is the case, then there is a massive hole in this Bill. I would like the Attorney General's office consulted on this and this committee told at the earliest available opportunity whether we are proceeding on an entirely false assumption regarding Cabinet matters and whether this is workable.

The judgment of the Supreme Court was very clear. It also made it very clear that Members of the Dáil, who are privileged Members also, need not disclose sources of information. This was a very far-reaching judgment. Not alone does it fit now on the shoulders of members of the Cabinet, but also on the shoulders of Members of the Oireachtas, who can claim that they have reason to say something, and if they are challenged on hearsay information they need not say from whom they received it. That was the ruling of the Supreme Court in its judgment. I am open to correction but I understand that as a member of this committee, I can make serious allegations and need not say where I got the information, refuse to back them up and then walk away.

Unlike Cabinet confidentiality it will be found whether or not the Deputy's allegation is correct. He may not disclose his sources.

But it is the same. Allegations can be made but when persons are challenged outside the House that they made such allegations, they shut up very quickly. Under the ruling handed down by the Supreme Court on Cabinet confidentiality, what went on at Cabinet cannot be debated in or outside the House.

Or what it is proposed to do at the Cabinet.

Is the amendment being pressed?

Does the Minister think it is necessary in the interest of clarity?

I do not think it is necessary in the interest of clarity because it is already covered, and given the way definitions work their way through the Bill it would be preferable if the words the Deputy proposes were not there because I think it would cause us consequential drafting problems. The sense of what the Deputy is trying to achieve is already covered under amendment No. 6.

If that is the Minister's advice on it, I am prepared to accept it. I hope we will not have a situation where in the future an officeholder pleads that he or she is not liable to the provisions of the Bill as a Member. If the Minister assures me that that is not the case, I will withdraw it.

Amendment, by leave, withdrawn.

I move amendment No. 7:

In page 8, subsection (1), between lines 13 and 14, to insert the following:

"(d) a person appointed as a judge;".

The Bill provides for disclosure of interests by a long list of people, Members of the Oireachtas, office holders, senior special advisers, senior public and civil servants in designated positions, designated directors of State bodies and senior executives holding designated positions in State bodies. All of these people must declare their interest to a greater or lesser extent in a register which will be available to the public and/or to a commission and to the Taoiseach. In addition, there is provision in the Bill for ad hoc disclosure where a potential conflict of interests could arise. Designated public and civil servants and others are prohibited from performing a function where there is a conflict of interest. My amendment is to include judges on this list. I wonder why judges were not included? Members of the Bench preside and give judgments in cases where many millions of pounds are involved. I do not wish to discuss particular cases but all of us can think of cases where millions of pounds and the livelihoods of thousands of people can be involved. The futures of large companies and, indeed, even the future of Members of this House can rest on decisions taken by judges. We as Members of this House have to declare our interests despite the fact — we all admit this — that we do not have that much influence. Last week I referred to the allegations about members at Westminister being paid £1,000 to ask for particular information. Given the extent of our influence, it would not be worth anyone’s while to offer us £1,000 for information. We do not have any great influence, but judges do. I am not questioning the integrity of members of the Bench. As is said, some of my best friends are judges, but I do not always declare that.

Would Deputy McDowell say likewise?

This Bill rightly imposes on us a duty of disclosure. The Minister told us there is no question of our integrity being questioned, that the introduction of safeguards has nothing to do with the way Members of the Dáil or office holders discharge their duties. I am not questioning the integrity of members of the Bench. The Judiciary has consistently included former Members of the Oireachtas. What magical transformation takes place the day after a former Member of this House becomes a judge that makes him or her so different from the rest of us that he or she can preside over and give judgment on cases involving millions of pounds? Due to this transformation they do not have to make a declaration of intersts.

We are prohibited from accepting a gift valued at more than £500. Why should a member of the Judiciary not also be so precluded? Is it the perception that judges or their spouses will not be offered a gift? Under the legislation they will not have to declare such gifts. Why will they not be in the same position as the rest of us?

Judicial offices are the gift of the Government.

The biggest gift of all and unless we get together and decide to remove them nothing can be done about them once they are appointed. As far as I am aware this has never happened. Why are they so different from us? We have to disclose our interests. One of the purposes of this so-called Ethics in Public Office Bill is to ensure that not only are we ethical and people of integrity but are clearly seen to be so. If Caesar's wife has to be above suspicion, why should Caesar not also be above suspicion, given the importance of the judgments he gives? I hope the Minister will accept this amendment. If she does not accept it, I want to hear a convincing argument as to why judges should be treated differently from the rest of us.

When I first saw Deputy Currie's amendment, the lawyer in me——

Bearing in mind his future propects.

——recoiled from it. I thought it was unnecessary as it has never even been hinted that a judge took a corrupt inducement. However, having listened to all the reasons that office holders and secretaries of Departments are to be forced into this process it suddenly occurred to me that it was completely anomalous to say that the Judiciary should be exempt from it. It is not that I am enthusiastic or suspicious, but I take on board all the points made by Deputy Currie. If the Bill requires me to register my interests — it is going to make me more visibly pure and incorruptible — then it must apply to members of the Judiciary as well. The reason for bringing members of the Judiciary into the officeholders' category is quite significant. If as a TD I have to register my interests then there should be an obligation on members of the Executive to register their interests. It would be farcical to require Ministers to register their interests but to exempt secretaries of Departments. In that context I cannot see how it can be logically argued that the Judiciary should be exempt from this provision.

The Bill contains provisions dealing with the acceptance of gifts. Deputy Currie has referred to them. The acceptance of gifts by a member of the Judiciary would be much more scandalous in the public eye than the acceptance of a gift by a politician. They would half expect it from politicians, but it would be much more scandalous if a judge was found to have taken a gift in circumstances which appear to comprise him or her in carrying out their duties.

Deputy Connolly will be interested in section 36 which amends the Prevention of Corruption Act. It will be an offence under the Prevention of Corruption Act for any judge to take a bribe, inducement etc. I am interested in the proposed new section of the 1889 Act which states:

Where in any proceedings against a person for an offence under the Prevention of Corruption Act, 1906, as amended, or the Public Bodies Corrupt Practices Act, 1889, as amended, it is proved that any money, gift or other consideration has been paid or given to or received by, an officeholder — (which would include a judge, if Deputy Currie's amendment is accepted) or special adviser or a director of, or occupier of a position of employment in, a public body by or from a person or agent of a person holding or seeking to obtain a contract from the Government or a public body...

The Judiciary will not be dealt with by that provision, but it will be relevant in relation to gifts. I do not understand why the acceptance of gifts by a Minister or secretary should cause problems, while the acceptance of gifts by a judge should not cause problems. I do not see how the Minister can refuse to accept Deputy Currie's amendment.

In case anyone thinks I am dissenting I want to agree that, in addition to having a very mild climate and no serpents or snakes, we have honest judges. It is one of the blessings conferred on this little island. I agree with the points made by my colleagues. I do not see any reason judges ought to be exempt.

Amendment No. 78 proposes to insert in the Second Schedule on registerable interests the words "membership of a secretive type organisation". That is an interesting concept in terms of registerable interests and without anticipating what Deputy Currie will say about it——

The Orange Order.

I was not thinking of the Orange Order. One can readily see the influence that could be wielded if that were a registerable interest in the realm of the Judiciary, in particular where new law is made and in the interpretation of the Constitution. One could see the significance of amendment No. 7 which proposes to include judges if the Minister accepts amendment No. 78. It would bring the definition of ethics outside the area of corruption and willingness to accept inducements in return for making decisions. This is a different areas of ethics and is another reason for agreeing to the inclusion of judges.

I have great sympathy with the points made by the Deputies opposite. However, in the preliminary stages of drafting we recognised that the drafting of any proposals for the Judiciary must have regard for their constitutional independence and tenure of office under Article 35 of the Constitution. The provisions of this Bill would not be appropriate for the Judiciary. The administration of justice by the courts and tribunals is governed by the rules of natural justice, and by an essential principle, namely, that a person should not be a judge in his own cause. Judgment in the case of O'Donoghue vthe Veterinary Council in 1975 set out a key legal test for determining whether a judge or jury is impartial in a case of a conflict of interest. Judicial proceedings which do not need to be tested in that way can be set as null and void. This would apply in a case where a conflict of interest arose, but was not addressed, on the part of a presiding judge. Where such conflicts of interests arise for a judge, it is the practice to pass the entire case to another judge. In the case of a conflict of interest, under the present law the judgment is void. There is merit in the points made by the Deputy, but for constitutional reasons this is not the Bill in which to address them. They will have to be considered in a different light.

Deputy Currie said that under the Bill Deputies would have to forfeit gifts of more than £500. That is not the intention unless one is a Minister, in which case gifts of more than £500 become the property of the State.

The Minister said she has great sympathy with the points made but sympathy does not butter parsnips. What makes judges different from the rest of us?

Article 35 of the Constitution.

I would like the Minister to elaborate on that. My learned colleague beside me knows more about the Constitution than I and I suspect he would demur with that. I would like to know more about the constitutional reasons put forward and also why judges who acknowledge they have a material interest in a matter before them can pass it to one of their colleagues. As we would object to a similar provision which would allow a matter to be passed from one Minister to another, why should we accept such a provision in respect of judges? I am not challenging the integrity of members of the Bench, but while it may be doubtful in some cases, they are human and have spouses, children, brothers, sisters and some of them have friends. It would not be unusual for them to be offered gifts.

If safeguards are necessary for the long list of people covered by the Bill — senior special advisers, senior public and civil servants in designated positions, designated directors of State bodies, senior executives holding designated positions in State bodies — why should judges be excluded? The only answer the Minister of State can give relates to implications. I need to know more about that in order to consider the point. If we believe these safeguards are necessary, perhaps we should be examining the Constitution. This point deserves support as well as sympathy.

Unlike Deputy Currie, I have never met a judge.

Keep it that way.

We have been served by the Judiciary and there is no reason to believe that will change. If I ever came before a judge, I would not consider him or her to be corrupt or other than fair in a court of law. If we appoint people to such positions we should recognise their responsibilities and expect them to exercise them in a proper fashion. In bringing them into the public arena in this manner and questioning their competence we would be undermining their position. It could then be said that every judge is corrupt and that there is a danger of them not giving one a fair hearing.

Why did Deputy Currie not include barristers? They are not mentioned in the list of public officials who will have to adhere to the provisions of this Bill. If we include judges — which may not be a wise decision, it should be done in a different way — we should also include barristers. If I employ a barrister to represent me in court, I would presume that irrespective of previous cases, that person would do whatever would be necessary to defend me and that professionalism would prevent him or her from having a biased interest. I cannot see why, if such a barrister has an interest in something, that would have a bearing on how he or she would act. If judges had particular attitudes towards certain people they would address those people and administer justice according to their personal outlook. To go down that road would bring the Judiciary into an area that would not be appropriate. We might wind up with a Judiciary who might consider that if it is under public scrutiny it might as well behave like others by taking what it can, and getting out when it is sent out.

I have considerable sympathy with what Deputy Walsh said in that most people make an absolute assumption of good faith in the Judiciary. Occasionally a person mentions doubts about the impartiality of a judge. In my experience very few ever whispered the thought to me that perhaps a judge was on the take from the other side. Very few of those who emerge from court crestfallen and horrified by the result of a case articulate seriously the notion that a judge was influenced financially to be interested in the other side of the case. The Minister said that under Article 35 of the Constitution the Judiciary is obliged to be independent. That is not a reason for not making it a condition that judges should register their interests. Independence and liability to register interests are not mutually incompatible. I consider myself to be independent in the exercise of my choice in the House. If it were not for a party whip I would be totally independent — a loose cannon of an appalling kind. I do not see how it can be thought right that someone's independence is compromised by making it incumbent upon one to make a declaration of interests.

I do not feel sorry for politicians such as myself, but I am beginning to feel sorry for secretaries of Departments and such people who are being dragged into the public domain. What Deputy Walsh said is correct. It may be very unpleasant for judicial office holders to be dragged into the public domain, for the press to pour over their declarations, to see that one judge is wealthy, one is poor, and that another lost shares in a project. We are now subjecting ourselves to that type of scrutiny. It will be possible to check on people although it will not be public knowledge and that would be the position if the provision applied to the Judiciary. If somebody will be able to make a complaint about such private matters, what is the problem with the Judiciary subscribing to the same rubric? I am deeply apprehensive that a rule is being made for civil servants who are supposed to be impartial and not being applied to the Judiciary. I do not believe that the constitutional doctrine of independence means they are not susceptible to making a disclosure of interests, and I do not see the difficulty in that.

The Minister advanced the view that some of the mechanisms in respect of other officeholders would not be apt for members of the Judiciary and I agree with her. If Deputy Currie's amendment was allowed to stand many of the mechanisms and remedies in the Bill would not be appropriate. It does not mean that one group of people are exempt from a new standard of public behaviour applied to everybody else. It is illogical that a secretary of a Department should be forced to do something a High Court is not forced to do.

I thought the Minister might have expanded on the constitutional implications she put forward. I am pleased the amendment was aired. Sympathy is not enough but I will leave at that.

Amendment, by leave, withdrawn.

I move amendment No. 8.

In page 9, subsection (1), line 12, after "person" to insert "but does include a person who cohabits with another".

If the interest of a spouse has to be declared, why should the interest not be declared of someone in a similar relationship in which a marriage ceremony has not been performed? A definition of a connected person includes the first degree of kindred. We all know that the relationship with a cohabitee in many instances is much closer than that with a brother or a sister. Why has that relationship not been included in the Bill? The provisions of the Bill do not apply to a separated spouse and I agree with that. It is as important for a cohabitee as it is for a spouse to be included in the Bill. What objections would there be to extending the provision to include a cohabitee?

I understand Deputy Currie's point but I do not see how it could be covered in the Bill. In layman's language I would term those to whom the Deputy referred as birds of passage. They come and go many times. I do not know how they could be covered in the Bill. The Minister has had a difficult time discussing the people that may be involved and doubts have been cast about the inclusion of a spouse in the Bill. How could cohabiting couples be covered in the Bill? How would one define cohabitation? There is no legal agreement on cohabitation except in cases where both parties are joint owners of a house. I know of only two such cases. In such a case the couple would have completed forms when purchasing a house and be covered under the Family Home Protection Act. A legal agreement in respect of house ownership would not be covered under this Bill. I appreciate the Deputy's good intentions but I do not see how such a provision could be included in the Bill. With due respect to all Members here, including Deputy Michael McDowell, I predict lawyers having a field day if that is to be inserted in the Bill.

Can I take up the challenge then? I strongly support the principle of Deputy Currie's amendment in that it is correct and necessary, though I would have drafted it slightly differently. On the last occasion remarks made here ended up in a Sunday newspaper printing a whole story about them. I want to emphasise that I am not speaking about anyone in particular or demanding that an inquiry be made as to whom I could possibly be referring. I am speaking on general principles.

If a person is separated from his or her spouse at present, the provisions of the Bill actually exclude that relationship. In many cases there are people cohabiting as husband and wife, who effectively form a de facto family; there is no doubt about that. There are public officeholders — I will not be any more specific than this — whose so-called second marriages are not recognised by our State. When talking about ethics in public office, if that person living with him or her were to have a material interest or benefit which came to the public’s attention, there would be all hell to pay. Across the whole range of officeholders there are people whose marriages have broken down and who have commenced a second relationship. Some of them have attempted to solemnise that relationship in marriages of one kind or another, be they Roman Catholic marriages after annulments — which the State does not recognise — or, alternatively, people who have married in civil ceremonies abroad which would not be recognised by our law. They would be obliged not to declare the interest of such person, as a spouse, on the register. For example, if I separated from my wife and went over to Las Vegas or wherever, married another woman and returned to this country, I would actually be falsifying the register if I put her down as my spouse for the purposes of this Act. In those circumstances, the second woman is not my spouse. I would use the phrase “cohabiting as husband and wife” if I were redrafting this amendment to render it slightly more correct. It would be a major scandal, if at some stage, a Minister or an officeholder of any kind were found to have hugely enriched a cohabiting partner, a long term life partner, in this way.

I am not trying to draw attention to anybody's personal circumstances. In the Dáil, our matrimonial arrangements never are discussed among ourselves or in public. That is a good thing. I believe Deputy Currie is right, that it would be absurd to say that a person from whom you are separated shall be disregarded for this purpose, but that no regard shall be had to a "substitute" spouse in this context. That would present a huge problem. If at some stage in the future it transpired an officeholder had greatly enriched his cohabiting life partner, or the children of his cohabiting life partner, there would be a major public scandal. As things stand he or she would be prohibited from registering that spouse's interests under the Act, as I see it.

On a point of information with regard to cohabiting couples, what legal arrangement applies?

Cohabiting as husband and wife.

Yes, but how does one define that?

For social welfare purposes it is done fairly well.

For social welfare purposes under the Act which was dealt with by the Supreme Court, in any such cases those persons can claim individually. That is not say that he or she cannot pack up their bag in the morning and walk away. I am being blunt because I could not foresee it withstanding a constitutional test. I have questioned whether, constitutionally, one can include a spouse in regard to a declaration of income. I have a grave doubt about that. I do not think it would stand up in the courts.

We had a very interesting discussion on this on an amendment of mine on the Finance Bill when I sought to have cohabiting persons in a permanent relationship regarded as married for the purpose of the tax code, a situation referred to by Deputy Connolly, memorably as "this new mobile situation".

It was a nice way of putting it.

To be consistent I will support Deputy Currie's amendment in as much as it recognises a fact of Irish life. We are talking about divorce, Irish style, which affect a great many people and which could affect officeholders. It seems there is a very good argument for having it included. We are not referring to "birds of passage", — as Deputy Connolly said, but to a more permanent arrangement.

I would like more detailed clarification.

I am sure the Minister will reply that she sees the merit of it and will accept the amendment, so perhaps I should finish and allow her to reply before 9 o'clock.

Throughout the drafting of this Bill we were very concerned to strike an appropriate balance between the rights of privacy and the need to know. I think Deputies on all sides of the House would share a belief that people's private domestic arrangements are their own business. I do not think that any of us wants to go into that or to engage in the type of tabloid journalism which has so disfigured events across the water. In any circumstance in which it was felt it would be appropriate that their arrangements would be comprehended under the definition of "spouse", it would be open to them to seek guidance from the Select Committee on whether or not, in any particular set of circumstances, their partner should be considered a spouse.

It means something in law.

It means something in laws. "Spouse" means one thing under the social welfare code and means something different, as Deputy Rabbitte knows, under the income tax law. Probably the most appropriate manner of dealing with this issue is to allow guidance be sought from the Select Committee which will interpret the provisions of the Bill in cases like these.

I just want to reflect on what Deputy Rabbitte has said. He has been working all day on the Consumer Credit Bill and late into the evening on this Bill. It seems to me that Opposition spokesmen are under more pressure from this committee system than members of the Government parties. I am generally coming to the conclusion that if we have to work this hard to operate the system, it may be that in the future we will have to insist that the whole House sits so that Ministers will be accountable and will be working as hard as we are during these months.

I pay tribute to the Members who have worked hard all day and particularly to those who are covering two committees today. It gives the lie to report in some newspapers that we are all on holidays at this stage.

Unfortunately, that is the only complaint I have. I do not think it gives the lie to that at all. Looking at the reportage of committees dealing with important Bills such as the Competition Bill, the Consumer Credit Bill, etc., one would have to be a very perceptive member of the public to know that we are sitting. Deputy McDowell's point, leaving out the personal element of it, is well made, that from the point of view of the public we are regarded as being on holiday, yet we are tied down here. Ministers are not accountable in the House as it does not meet and it raises questions that will have to be examined.

I agree. If we are here, everybody over there should be here also.

The questions raised by Members are very relevant to us all. There is a public perception with regard to Ministers, backbenchers and every Member of the House that we have been on holiday for the past month, whereas we have probably had a busier schedule than if the Dáil was in full session. Hopefully, the Oireachtas Report programmes will help to clarify the public image of Members of the House. The sooner the better we have a proper Oireachtas information officer appointed to safeguard the public perception of Members and I hope it will be done at the earliest possible date.

Progress reported; Committee to sit again.
The Select Committee adjourned at 9.5 p.m. until 6 p.m. on Thursday, 21 July 1994.
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