Select Committee on Finance and General Affairs díospóireacht -
Thursday, 13 Feb 1997

SECTION 42.

Mr. Howlin

I move amendment No. 39:

In page 34, lines 19 to 25, to delete subsection (2) and substitute the following:

"(2) (a) If the Chairperson becomes of opinion that a communication is in contravention of subsection (1), it shall be the Chairperson’s duty not to entertain the communication further and to disclose to the next subsequent meeting of the Executive Board in writing the substance of such communication and particulars of the disclosure shall be recorded in the minutes of the meeting concerned.

(b) If any other person referred to in subsection (1) to whom a communication is made becomes of opinion that a communication is in contravention of subsection (1), it shall be that person’s duty not to entertain the communication further and to inform forthwith the Chairperson in writing of the substance of such communication and the Chairperson shall acknowledge in writing the receipt of such information.”.

Section 42(2) requires that any improper communications received by a person specified in section 42(1) must be notified to the chairperson in writing. However, as the persons specified in section 42(1) include the chairperson, the effect of the section would be require the chairperson to notify himself or herself if he or she received an improper communication. The amendment proposed would provide for the chairperson, in the event of him or her receiving an improper communication, to disclose the matter in writing to the next meeting of the executive board. The requirement currently in the Bill, that any person receiving improper communication should inform the chairperson, will remain unchanged.

Mr. E. Ryan

Is this connected with lobbying about a site?

Mr. Howlin

It covers improper communications for the purpose of improperly influencing the board. Lobbying would not be improper but if it was accompanied by a cheque it certainly would be.

Mr. McCormack

That is a good example of what is improper but what is the half-way stage between proper and improper? When does legitimate representation become improper?

Mr. Howlin

We do not define it in the Bill other than as "improper" and I have debated with officials how that can be done. Ultimately the courts will define it but I think common sense will see that it is proper and normal for a person making a development proposal to lobby his cause. However, if someone is threatening, bribing or acting in a way which is improper as we would all understand it, that clearly should be brought to the chairperson's attention or, if it is directed at the chairperson, to the board's attention.

Chairman

Deputy McCormack's point is that it would not be improper to make a proposal and argue for it.

Mr. McCormack

We are creating legislation but who will define what will be improper? Some people will say a particular action was proper, others will say it was improper. When a matter has to be reported to the chairman, who will define what was proper?

Mr. Howlin

The person receiving the communication will determine whether it was proper.

Mr. McCormack

To give an extreme example, if the person receiving the communication did not like the clothes the other person was wearing or had a grudge against the other person, he might report it. The provision states that this must be reported but it is vague and I am anxious that we would define what is and is not proper. Guidelines should be issued.

Chairman

That is a good point. Perhaps the Minister would look at this before Report Stage to see if it could be better defined.

Mr. Howlin

It is a standard provision which occurs in other legislation where boards are appointed which will be making decisions of the nature of those this board will make. If an outrageous suggestion is made that somebody was being improperly influenced, the chairperson would immediately dismiss it. It is simply there as a safeguard. If there is a suggestion of improper influence, the courts will ultimately decide the facts.

Mr. McCormack

The whole purpose of representation is to try to alter something or to suggest it should be altered. Reference has been made to an improper representation which would influence the decision, but the whole purpose of representation is to influence a decision. If I write to the planning office about a particular planning application and point out irregularities in it, my purpose in so doing is to influence the decision. The purpose of any representation is to influence a decision, perhaps by presenting new evidence.

Mr. Howlin

That is not improper.

Mr. E. Ryan

The role of a public representative is to make the views of developers, local residents' associations and so on known to the authorities. However, the Minister is referring to a situation, for example, where a local development was being discussed and somebody offered a holiday apartment in Spain to influence the decision. That would be improper. It is to be hoped that the members of the board will know what is proper and what is improper.

Mr. McCormack

I fully accept that and I am against improper representation or influence. However, I am slow to be part of a committee which is making legislation without defining it.

Chairman

It is a standard provision in other legislation. The same matter arose on the compellability legislation in relation to journalistic privilege. Somebody said it should be left to the courts to decide what is journalistic privilege. I was taken aback by that because I thought that was our job. We should not allow these definitions to be made by default by the courts. It may be worth further reflection.

Mr. E. Ryan

The Minister will appoint — or, at least, I hope he will — able people who will carry out their functions in a responsible manner. We could be here all day trying to define what is proper and improper.

Mr. McCormack

I think I have protested enough.

Amendment agreed to.

Section 42, as amended, agreed to.

Sections 43 to 58, inclusive, agreed to.

First Schedule agreed to.

Second Schedule agreed to.

Third Schedule agreed to.

Title agreed to.