This section deals with the guidelines the commission shall draw up. It gives us the same guidance role in relation to office holders and public servants as committees have in relation to members. This section and section 12, of which this is a minor image, provides for a consultation process whereby the commissions and committees are required to consult with one another before publishing guidelines to make us sure there is a degree of uniformity.
SECTION 24.
Question proposed: "That section 24 stand part of the Bill."
Can the Minister explain subsection (4) because I do not know what it means. I am mystified by it.
We too found this challenging. Subsection 4 states:
Where an act, if done by a person, would not be in accordance with guidelines or advice given to the person under this section and would contravene another section of this Act, the person shall, in relation to the act, act in accordance with the guidelines or advice.
What does that mean? The Minister would get a PhD if she could explain that.
I am not worried about genuine complaints which conform with the guidelines. However, I am worried about fabricated complaints that will be made by some people at some stage with the purpose of leaking them to the press. We must pay careful attention to this because a major scandal could arise whereby some people will seek, for evil purposes, to undermine a Dáil Deputy, Senator or someone else covered by this Bill. They will not do it with a view to keeping the country decent and straight, as the Minister is seeking to do in this Bill, but with a view to leaking it to the press. Very careful thought must be given to dealing with such a situation. If someone with a certain prestige tells the press a complaint has been made to the commission about a Deputy, the press will ask if a complaint has been made and if the commission say it is not in a position to talk about it that in itself looks bad. The finger of suspicion is pointed at the Deputy or Senator and, as the Deputy knows, there is absolutely nothing any of us can do. Many people in the past have been victims of that. The more it is talked about the worse it gets. Some precaution should be written into the Bill to prevent that. I am not suggesting censorship or anything of that nature but there should be natural justice for people who are involved in this. They should not be pilloried all over the country because of some nasty Machiavellian friend in their constituency, probably in their own party.
Can I still have an explanation?
The section requires individuals to comply with guidelines and advice in the normal course but it absolves individuals from such a requirement where guidelines are not in accordance with other provisions of the Act. If the commission or the committee gets it wrong, the Act takes precedence over guidelines. Normally, one is required to follow guidelines where those guidelines are right.
With respect to the Minister, it does not do that. Her explanation could be put in a section and that would be fine. However, the Bill requires one to act in accordance with the guidelines where if the act was done by one it would not be in accordance with the guidelines and would contravene a section of the Act.
I share Deputy McDowell's view on how difficult the language is in this section. My advice is——
The Minister's explanation makes sense but it does not seem to bear any relation to——
Perhaps we can go back and see if we can draft the subsection in plainer English. If what it is intended to achieve is not crystal clear to the learned Member we could have another look at it.
It is quite simple. The Minister just has to state in very clear language that where the guidelines of the commission conflict with the Act, the Act takes precedence. That would get rid of all the tautologous and confusing language; people like simple language.
Simple stuff.
I would be very happy to look at the language.
(Interruptions.)
Section 24 (1) (a) states that the commission "shall" publish these guidelines and section 24 (1) (b) states that it "may" give advice to people who request some direction or clarification, I presume, beyond the guidelines. I understand paragraph (a) but the use of the word "may" in paragraph (b) implies that they may not give advice if they do not wish to. Is my interpretation right or am I reading it incorrectly?
The word "may" would only apply if somebody was messing the commission around by making frivolous requests for advice in order to postpone making their declarations. If that was the case, the commission would be in a position to refuse to give such advice. In the normal course of events, the provision is there to ensure that if somebody has a query about whether a particular interest is a declarable interest under the Act the commission would give those guidelines. It just provides a defence mechanism to ensure that the commission is not messed around.
Is the intention of this section that a person looking for this advice should be given it within 21 days?
Yes. If someone knew that three of their four financial interests were declarable under the Act but was not sure about the fourth one, they would declare the first three. The fourth is put on ice until they get guidelines from the commission as to whether it is declarable. Once that advice has been given the person is obliged to comply with it, provided that subsection (4) does not come into effect.
Am I right in thinking that this does not apply to Members?
Members have a parallel section 12.
Is the word "guidelines" the appropriate word? That word of its very nature means flexibility and movement. I am sure that some consideration has been given to that but an alternative, more definitive word might be better.
My advice is that the difficulty which we all had with subsection (4) means that one has to comply with the guidelines unless the guidelines happen to be in contravention of the Act.
Therefore, they are not guidelines but directives.
In all of those areas, guidelines or criteria should be published in easily understandable form. Are those guidelines to be drawn up by the commission or the Department?
The guidelines will be drawn up by the Select Committee in relation to Members and by the commission in other cases.
Question put and agreed to.