Select Committee on Finance and General Affairs díospóireacht -
Wednesday, 14 Sep 1994

SECTION 8.

Mr. Rabbitte

I move amendment No. 21:

In page 13, subsection (2), line 29, to delete "(other than a member who is an office holder)".

This section seeks to preserve the term, "other than a member who is an office holder". Why should an office holder be exempt from its provisions? Section 8 states:

A person (other than a member) who considers that a member (other than a member who is an office holder) may have contravened section 5 or 7 may make a complaint in writing in relation to the matter to the Clerk....

The Bill is arranged in Parts under the headings of "Members" and "Office Holders". I do not understand why a distinction is made because a Minister is also a Member of the House. Why should such a distinction be drawn? Why should the Minister, in his or her capacity as a Member, not be subject to the same rubric as a Member of the House?

A Minister also discharges functions as an ordinary Member of the House. In his or her capacity as a TD — as distinct from his or her capacity as a Minister or office holder — he or she might seek to make representations to progress a certain matter. Unless an obvious reason is offered by the Minister, it is undesirable that we should exempt Members of the House who also happen to be office holders. Many backbench Members — unfortunately, a number of them have left at this late stage — would agree that it is one of the ironies of this Bill that there is a significant intrusion or imposition on Members of the House who have little influence to dispense while office holders, who have a significant influence at their disposal, appear to be exempt from this section. The distinction between Members and office holders that the Minister has made elsewhere in the Bill should not apply here.

Ms E. Fitzgerald

Ministers and office holders are not included because they are covered in an analogous provision under section 21 which deals with complaints made by members of the public in respect of office holders. Those complaints will be investigated by the commission. There is a more rigorous regime for office holders.

Complaints against Members are investigated in the first instance by the select committee. Complaints against office holders are investigated in all cases by the commission. The report of the commission is sent to the select committee. Ministers are not exempt in their capacity as Members or as Ministers from the scrutiny of the select committee. In fact, they must satisfy a more rigorous test. The committee, on receipt of the commission's report, can make recommendations to the House on that report.

Mr. Rabbitte

The Minister's reasoning is faulty. In the separate section to which the Minister refers, office holders are subjected to the process qua office holders and not as Members of the House. Ministers make representations in respect of certain matters on the basis that they are acting in their role as constituency Deputies. It would be very difficult to argue that they are not entitled to do so. It is also stretching credulity to argue that the fact that the Member, who makes representations on behalf of a constituent, also happens to be a Minister does not impinge on the consciousness of the person to whom the representations are made. Sometimes it is rather difficult to make that distinction.

A Cabinet Minister functions as a Cabinet Minister even when it is convenient to remove the office holder hat and to make representations in the guise of a constituency TD. We ought not exclude Ministers from the regime that applies to Members of the House in the event of a complaint being made by a member of the public. I presume that the nature of the complaint will determine whether it is appropriate for it to be processed under this section or whether it should be processed under the regime relating to office holders. I cannot see why Ministers ought to be entirely excluded from their role as Members of the House.

Ms E. Fitzgerald

Perhaps Deputy Rabbitte misunderstood the import of section 21. Ministers are subject to investigation by the commission in respect of any occurrence about which a complaint is made at a time when they are office holders. It could be an alleged contravention of Part II — which we are discussing at present — Part III or Part IV. If a member of the public believes that a Minister might have contravened his or her duties as a Member the complaint goes to the commission and the commission reports to the select committee. An alleged transgression by a Minister is subject to a more rigorous regime than transgression by a Member even if the alleged transgression by a Minister takes place in the Minister's capacity as a Member.

I refer the Deputy to section 21 (1): "A person (other than a member) who considers that a person may have contravened Part II, III or IV at a time when he or she was an office holder...". The relevant words are "Part II" which refers to contraventions under section 8 and "at a time when he or she was an office holder". There is no restriction to contraventions in their capacity as an office holder.

The point made by the Deputy is covered. A more rigorous regime is provided in the Bill to deal with complaints in respect of Ministers. In the case of an ordinary Member the complaint dies if the Member ceases to be a Member. However, investigation of a complaint against a Minister continues even if the Minister loses his or her seat or ceases to be a Minister. I am sure the Deputy's intention would not be to lessen the rigour of the regime applying to Ministers.

Mr. Rabbitte

I am tempted to reply to the Minister's last comment but perhaps I should let it go. We will in due course come to Part V when we will consider how much more rigorous it is and so on, but it ought to reflect the view of all sides of this House that it is the Executive that is likely to be confronted with conflicts of interest rather than ordinary Members of the House, which would be an exceptional happening. Members of Government are likely to be in a position to advance their interests or the interests of a connected person or whatever as a result of some measure they would put through the House or cause to be put through the House. However, this section relates to the circumstances where a complaint might be made against an ordinary Member of the House and the procedure laid down exempts office holders. Surely it is easy to envisage a complaint against the Minister in his or her capacity as a Deputy? The same assessment ought to apply in that case as applies to the rest of us.

I am not sure how I read section 21 which the Minister has brought to my attention. It reads "who considers that a person may have contravened Part II, .... at a time when he or she was an office holder". I think I see the point the Minister is making. Does that mean that if the investigation was post hocand the person was no longer an office holder, a complaint made during the period when the person held office would still be investigated by the commission? I can see circumstances where that would be appropriate, but I cannot see why we ought not allow the terms of the complaint to determine which procedure is appropriate.

Chairman

Is the amendment being pressed or does the Deputy wish to withdraw it and reintroduce it on Report Stage?

Mr. Rabbitte

I was just holding my breath in expectation that the Minister might pour more enlightenment on me. As more enlightenment is not forthcoming, I will withdraw the amendment but keep my options open in terms of Report Stage.

Amendment, by leave, withdrawn.

Chairman

Amendments Nos. 22, 24 and 25 are related and may be discussed together. Is that agreed? Agreed.

Mr. Rabbitte

I move amendment No. 22:

In page 14, subsection (5), line 2, after "member" to insert "at least six months prior to the receipt of the complaint".

My problem here is that I cannot recall what I had in mind. As subsection (5) stands at the moment it baldly states that a complaint may not be made under the section in respect of a person who has ceased to be a Member. I am trying to put a specific time scale on that and I suggest that in all the circumstances six months would be reasonable. I would like to hear the Minister's opinion on that.

Ms E. Fitzgerald

The Bill provides that where an ordinary Member has ceased to be a Member the electorate has made a judgment on him and complaints cannot subsequently be entertained. There is some question about the jurisdiction of a select committee of a subsequent Dáil to investigate Members of a previous Dáil. However, we provide for where a Member was being investigated at the time of an election and subsequently lost his seat. If that Member wants the investigation to continue to a conclusion in order, for example, to clear his name, we allow him to make that request, but in general we adopt the principle that if a person ceases to be a Member of the House, the electorate has passed its verdict and we will not flog a dead horse.

Mr. Currie

If a constituent or anyone makes a complaint against a Member who then ceases to be a Member of the House, that complaint lapses unless the Member wishes the investigation to continue. What happens where a complaint is made during an election campaign? After all, we all cease to be Members when an election is declared. When an election is declared, the Member complained about ceases for the time being at least to be a Member of the House and the complaint lapses although the electorate has not made a judgment. The Minister said the complaint should not be proceeded with because the electorate would have made a judgement in the case of a person who was defeated. What happens in the case of a person who is re-elected? He or she has ceased temporarily to be a Member. Does the complaint lapse in those circumstances?

Ms E. Fitzgerald

My understanding is that in those circumstances if the complaint is lodged with the Clerk in respect of somebody who has once again become a Member of the House, it would be investigated, but we can have another look at the wording to see whether this gap in membership might come between the intention of the legislation and its effect. That is a technical point which we will look at but in broad terms that is what the legislation is seeking to do.

This provision seeks to ensure that where somebody is in continuous membership, complaints can continue to be investigated by a select Committee of his peers. Where a Deputy has lost his seat the investigation folds and somebody cannot three months after an election, lodge a complaint against a person who is no longer a Member of the House and invite a select Committee to investigate Members of a past Dáil. We accept the point made on all sides that Ministers are closer to the scene of the action and therefore we provide that where complaints are made against Ministers, whether or not the Minister loses his seat or their ministerial office, those complaints continue to be investigated.

Mr. Currie

If someone who ceased to be a Member because of the dissolution of the Dáil and was re-elected, would the complaint have to be made again?

Ms E. Fitzgerald

I imagine the Clerk would hold on to it. We can look at the wording to make sure that is covered.

Mr. Currie

Can a complaint be made after the Dáil has been dissolved? I assume not.

Ms E. Fitzgerald

When the Dáil is dissolved there are no members and no Select Committees. If complaints are lodged with the Clerk in an interregnum, presumably the Clerk files them until the Dáil reconvenes.

Mr. Currie

So at a time when complaints are most likely to be made, during an election campaign, the complaint cannot be made. Maybe we ought to be grateful for that. However, the Minister should consider whether or not a complaint lapses during an election campaign.

Mr. E. Ryan

If a Member makes a complaint about another Member to the committee and an election is called, does the fact that this is in writing mean that it cannot be disclosed to the public while it is under investigation? If it can be disclosed and the Member loses his or her seat because of the allegation which is afterwards proved to be false, where does this leave the Member? If people wanted to play dirty, they could make allegations about Members and muddy the water leading the electorate to a negative view of such Members who may lose their seats as a result. What redress would Members have in such situations? How could a complaint be kept confidential until it is dealt with after which if a person is proved guilty, it will come into the public domain?

Ms E. Fitzgerald

Nothing we can do in this committee will stop anybody from firing salvoes of political charges during an election campaign. We all accept the realities of life in that area. However, section 33 provides that: "A person shall not disclose information obtained by him or her under this Act or by being present at a sitting of a Committee or Commission held in private." If the committee have not come to a conclusion on charges made at a sitting of the committee Members cannot throw open that information without facing censure and the appropriate penalties under section 33 (1).

Mr. E. Ryan

I suppose there is nothing we can do if someone speaks to a journalist off the record during the heat of an election campaign and says that a particular Deputy is under investigation by the committee?

Mr. Currie

One should make a complaint the day before the election.

Mr. M. McDowell

Have xerox forms ready.

Ms E. Fitzgerald

From my experience of election campaigns far tougher things are said then about people than are under investigation by committees.

Mr. Currie

I assume one can make complaints about members of one's own party in the same constituency.

Chairman

I now understand the sort of training Deputy Currie received.

Mr. Rabbitte

What about the circumstances where a complaint is made against a Member, the opportunity to investigate it is precluded as a result of a general election, the Member loses his or her seat, perhaps as a result of the allegation, and the Member wishes the investigation to be conducted to finality?

Ms E. Fitzgerald

The Bill provides for such an investigation if a former Member wishes it to be conducted to finality.

Mr. Rabbitte

Could the Minister say why there should not be a cut off point, of whatever duration, as suggested in the amendment?

Ms E. Fitzgerald

We suggest the cut off point is at the time of the general election if the Member concerned loses his or her seat. This is the cut off point for complaints made by the public about the conduct of such Members in the previous Dáil. The effect of Deputy Rabbitte's amendments would be to give the public six months grace to continue to hound a former Member for alleged transgressions in the previous Dáil.

Mr. M. McDowell

It is unsatisfactory that a committee engaged in determining the truth or otherwise of a serious allegation should have to suspend its operations because the person against whom the allegation is made is no longer a Member. We do not protect everybody's rights by giving the person against whom the complaint was made the sole option of continuing the investigation. On balance, there could be a major injustice if the complainant is given the right of veto the continuation of the investigation at a time when he or she may have flung a great deal of dirt at someone else and can retire from the scene under the smoke screen of having lost his or her seat. It is possible under the Constitution to protect the position of a former Member while continuing the power of a committee to investigate whether the complaint can be substantiated. The only difficulty I can see is that the membership of the committee might be radically affected by the outcome of the election. Half the people who heard half the evidence could have lost their seats like the complainant or the complainee. It is unfortunate that somebody can effectively cut off in mid flight the investigation into himself by not contesting the next election. The obvious inference is that a person on his or her way out of politics can consider that it is not worth the candle to vindicate himself or herself and prevent others from vindicating the allegations made against him.

Mr. E. Ryan

If Members under investigation lose their seats and have to come back to defend themselves without having any visible means of support we may have to reimburse them. Many Members do not have any means of support outside politics and may have to find jobs. If they are under investigation, employers may want to know how many times they may have to come back to defend themselves. This is a very complex area and could open up a huge Pandora's box. It would be dreadful to force somebody to come back over a six month period. These issues are not black and white. There will be grey areas as to whether or not a person is guilty of the accusations made against him.

Mr. M. McDowell

I accept that point, it has validity. However, I lost and regained my seat and this will happen to others. If I lost my seat during an investigation against me and regained it subsequently, it would be most unfortunate that a genuine investigation into alleged misbehaviour on my part would lapse with the loss of my seat. The electorate should be told whether the charges I faced at the time I lost my seat were substantial. It is unfair in those circumstances to leave the investigation hanging or to allow me to contest an election saying allegations against me were never proved.

Mr. Currie

The Minister said that the electorate in these circumstances would have passed judgment and that the investigation should be terminated. However, Members may find that they will not be reselected by their parties as a result of allegations made. Therefore, it would not be the electorate which would pass judgment but a body not responsible to it.

Chairman

Does the Minister wish to comment?

Ms E. Fitzgerald

I have already dealt fairly fully with the matter.

Chairman

Is the amendment being withdrawn?

Mr. Rabbitte

I will withdraw it, but I am not happy the arguments it gives rise to are resolved.

Amendment, by leave, withdrawn.

Section 8 agreed to.