Nuclear Energy (An Bord Fuinnimh Núicléigh) Bill, 1971: Committee Stage (Resumed).

Wednesday, 17 February 1971

Seanad Eireann Debate
Vol. 69 No. 8

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Question again proposed: “That section 6, as amended, stand part of the Bill.”

Dr. West: Information on Timothy Trevor West  Zoom on Timothy Trevor West  I want to raise a couple of points on subsection (2). We find in this subsection:

...an officer or servant of the Board authorised in writing by the Board to enter upon premises and to carry out such inspection as may be reasonably necessary....

I am not happy that an officer or servant of the board may carry out this inspection. If the Minister is asked [700] about a certain inspection or any infringement of personal rights which occur as a result of it he can say that it is not his responsibility, that it is the responsibility of the board, and he can push the responsibility on to the board. It is much more difficult to get an answer from a body such as the Nuclear Energy Board than to get an answer from the Minister. The Minister should be answerable for all inspections. I would feel much happier if there were some provision, as in the United Kingdom, that the Minister should be answerable for all such inspections.

The second point is that the officer or servant of the board can enter upon “premises”: that is the word used in the subsection. I am unhappy about this term “premises”: it is an omnibus term. I should feel happier if the servant of the Minister or the servant of the board were allowed to enter on premises which were licensed in some sense to cover the nuclear or the radioactive machinery or installation that is contained in the premises because, in an earlier section, we have seen the difficulty in definition of “radioactive or fissile” substance. As was pointed out, every human being is radioactive in some sense or other. As a result, legally speaking, under this section, an officer or servant of the Minister or officer or servant of the board could enter private premises to investigate radioactivity. This may be unlikely but it is something we ought to guard against. It should not be allowed under this section. Some change should be made to ensure that people cannot enter into private houses, for example, to investigate the radioactivity of the inhabitants, without some particularly good reason. I suggest some licence provision to ensure that the premises being inspected were radioactive or contained radioactive installations or materials in the proper sense of the word. In the corresponding section of the United Kingdom Act, inspection of private premises can only be carried out on a warrant issued by a magistrate who has been presented with sworn information in writing. Something should be done to ensure that [701] way I have described.

Professor Dooge: Information on James CI Dooge  Zoom on James CI Dooge  I should like to support Senator West on this point. We have here in section 6 (2) a rather free power for entry on premises. This is an open term: no restriction and no definition of it is contained in the definition section of the Bill. While it is appropriate that an inspector should have power to enter premises where there are nuclear installations, the subsection would seem to be far too wide. We would perhaps link it up, as Senator West suggested, with subsection (1). Under subsection (1) it is necessary to have a licence for the custody, use, manufacture, importation, distribution, transportation, exportation or other disposal of fissile or other radioactive substances. I should imagine it would be appropriate under subsection (2) that the power of entry given simpliciter to enter premises should be restricted to premises in respect of which a licence has been issued under subsection (1) of this same section.

Professor Jessop: Information on William JE Jessop  Zoom on William JE Jessop  I should like to support what Senator Dooge has said and, indirectly, to support, in part anyway, what Senator West has said. Work may be going on in a physics laboratory or a laboratory attached to a hospital where proper arrangements have not been made for the safety of the workers and the disposal of the radioactive materials. If these premises can be entered only as a result of a warrant, the people concerned have ample notice to put their affairs in order and, as soon as the inspection is over, they may relapse into their original bad ways. Parallel to the procedure here, in the matter of the use of animals for laboratory purposes—in other words, the Vivisection Acts—all places where such work is being done are licensed under the Department of Justice. Inspection can then be made without more than a formal notice, a relatively short notice at that, to see that the conditions for the keeping of animals and the disposal of infected material, and so on, are being observed. There is a distinct parallel between that kind of situation and what would obtain worded. The Minister will understand [702] here. We do not want to have people entering premises that are essentially private premises without proper authority. On the other hand, we do not want the misuse or dangerous use of materials in these premises to go on without the possibility of direct supervision, at relatively short notice, to make sure the matter is put right.

Dr. Belton: Information on Richard Belton  Zoom on Richard Belton  I am very glad this point has been raised by Senator West. The point he is, I think, making is that, while he agrees, in effect, there may be danger from radioactivity, he wants to prevent the widespread invasion of private premises by inspectors. I presume that is what Senator West is really getting at. With that I am in agreement and I think Senator Dooge has supported it also.

Fundamentally, if I have to support any one of the three speakers fully, it will be Senator Jessop in that there may be occasion when, in premises other than those which it is the intention of Senator West and Senator Dooge to license, this danger may occur. I would be the last to agree that there should be an invasion of premises in regard to anything of this nature. Senator Jessop, speaking as a medical authority, has put a finger on a point. I am not quite sure how this can be overcome by altering section 6 (2). I am not as well-versed in this subject as Senator Jessop or maybe Senator West, and especially Senator Dooge who probably knows more about this than I do, to be able to say whether the danger of radiation can be extended by people in contact with radiation and brought into private premises or, as Senator Jessop has said, by animals and other things used in medical research—of course, that comes within the ambit of this Bill.

Therefore, one must go very carefully in either accepting or rejecting section 6 (2). I am more inclined, on balance, to agree with Senator Jessop. The principles Senator West and Senator Dooge have enunciated are of prime importance to all who wish to look after the privacy of the individual and this is one of the interests of the Oireachtas at all times. It is very difficult for me to be definite or to suggest to the Minister how this should be this section cannot be misused in the [703] from statements just made by previous speakers and myself our fears in this connection. The question is whether our fears can be resolved by limiting it to licensed areas and whether, indeed, licensed areas will be sufficient to cover the danger involved. With the best will in the world, the licensed areas may not embrace every possible premises involved. I see that fear. I think that is Senator Jessop's point. No matter how much one licenses an area, there may be an area outside this where the effects of fissionable material radiation may occur. It would be very wrong of us to suggest at any stage that we should not embrace this within this subsection.

Minister for Transport and Power (Mr. B. Lenihan): Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  There is not much need for me to make the point that has just been made for me by Senator Belton. That is precisely our thinking on the matter. This whole question of radioactive substances is of such vital safety interest that it is very important that the provisions empowering either the Minister or the board—we are leaving it both ways for the present; either can do it; we shall work out afterwards who in fact will be responsible for the specific inspection operation—do not, in any way, circumscribe the inspection that may be necessary not only for the safety of individuals but conceivably for the safety of the whole community. If we confine this inspection to licensed premises then we obviously exclude unlicensed premises. The main purpose of any such inspection will be to deal with potential illegal nuclear or radioactive experimentation or dealings of one kind or another. This is the type of investigation that will be of paramount importance as far as any inspector is concerned. It is very important that we do not circumscribe such inspectors in any way by confining them to licensed premises. It is important that we leave it open to them, under order of course, to make such inspection as they may wish in regard to any premises where some nuclear or radioactive operation may be taking place.

Dr. West: Information on Timothy Trevor West  Zoom on Timothy Trevor West  I see the Minister's point —his interest in unlicensed premises in [704] the nuclear sense of the term. I agree about the difficulty inspectors could have. I agree it would be very difficult to set down the terms of a licence so that it embraced all the situations which might need to be covered in this respect. I should like to ask him about the first point I raised. This was the matter of responsibility: the accountability of the inspector. When a person asks about the behaviour of a servant of the board, acting as an inspector, will the Minister be able to say: “This is the function of the board. This is the responsibility of the board. It is now no responsibility of mine”, or will all these inspectors be accountable to the public through the Minister? This is very important. We do not want to transfer responsibility here. It is very important that the public have redress through the Minister.

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  There are two options open under the subsections as regards the order and as regards the licence issued under the order. In either case, the Minister will carry ultimate responsibility either via the board in one set of circumstances—if that is considered the required way to make the order—or directly, as is also provided for here in the subsections.

Generally, this is the thinking right through this Bill. We are leaving the sections as general as possible so as to enable us to develop by experience. This is not just in connection with this section: I have said the same thing in regard to other sections. It is as well to leave it global at the present time where the order can be made either by the Minister directly or indirectly by the board. With experience and research, according as information comes to hand through the aegis of the board, it is decided in what specific way to proceed: what way is the most feasible way to proceed, whether via a board or directly through a Minister. The Minister carries the ultimate responsibility. No matter which way it is done, the Minister will be the ultimate responsible person, and rightly so, in regard to any particular wrong alleged to have been done, under this or under any other section of the Bill.

Dr. Belton: Information on Richard Belton  Zoom on Richard Belton  It appears to me that the Minister is accepting responsibility [705] for this. Surely, then, he must be answerable to any questions raised in the Lower House on foot of this?

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  Yes. That is the practice to answer any questions.

Mr. Sheldon: Information on William Alexander Sheldon  Zoom on William Alexander Sheldon  Yes. This is all very well. This is the Minister's intention. Is it in the Bill? Could a successor to the Minister say: “This is a function of the board. I am not answerable in Parliament”? It is all right for the Minister to have good intentions but, unless they are in the Bill, they are not of any use at all.

Dr. Belton: Information on Richard Belton  Zoom on Richard Belton  That is the point I am making.

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  If the House wishes, I shall look into this between now and Report Stage. At a glance, I cannot pin it down—which, I think, is Senator Sheldon's desire—that is, specify the board as the Minister's agent. I could put in that qualification. Whenever board is mentioned under this section, we could specify, after “board”, “as the Minister's agent”.

Professor Dooge: Information on James CI Dooge  Zoom on James CI Dooge  I would urge the Minister to look at it from that point of view. One way of getting round the difficulty here would be that, in regard to inspections, authorisation by the board should not be sufficient for the board's inspector. If the inspection is made on the Minister's authorisation and if the Minister is answerable, this might meet the case.

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  I will certainly look at that. The principle in the idea appeals to me. I shall look at the drafting of the section with a view to incorporating the ideas adumbrated here by Senators.

Professor Dooge: Information on James CI Dooge  Zoom on James CI Dooge  It is important because the section reads very strongly. A person who obstructs an inspection —this even means somebody who does not know what the inspector is looking for: somebody who does not know what it is all about: somebody who shuts a door in his face—under this subsection “shall be guilty of an offence”. It makes it an absolute [706] offence in this way. I think it would need softening.

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  We will incorporate that safeguard.

Dr. West: Information on Timothy Trevor West  Zoom on Timothy Trevor West  Surely it would protect the individual's privacy, and at the same time, it would achieve the effect desired under this section if a warrant was issued for an inspection of private premises on sworn information supplied to a magistrate?

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  That would be carrying it too far.

Dr. West: Information on Timothy Trevor West  Zoom on Timothy Trevor West  If there was a genuine difficulty, surely a warrant could be issued very speedily?

Professor Dooge: Information on James CI Dooge  Zoom on James CI Dooge  I am afraid I have to argue against my previous support of Senator West here. I think there would be cases in which even these delays would not be tolerable. It might come to the notice of an officer of the board that some radioactive material had been removed from a premises which was licensed to a private dwellinghouse. In these circumstances, very rapid action might be necessary.

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  Yes. That is my feeling. Senators might notice that, under section 6 (1), we already have incorporated the words “save under licence issued by him”—the Minister—“or by the board as his agent”. I shall check with the draftsman if this should be continued right down through the whole section, as has been suggested by Senators. I shall check if that is necessary. I shall check if it is a factor governing the other subsections. I am not quite clear about it; it is a draftsman's point. Certainly, if required, I shall make it quite plain, between now and Report Stage, that the Minister carries ultimate responsibility and that any operations by the board or by inspectors of the board are operations carried out on the basis of being the Minister's agent and, therefore, the Minister carries the ultimate responsibility.

Dr. Belton: Information on Richard Belton  Zoom on Richard Belton  The Minister is answerable?

[707]Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  As defined in the section—to be answerable to the Dáil and Seanad.

Professor Dooge: Information on James CI Dooge  Zoom on James CI Dooge  I want to refer to the multiplicity of inspection, the multiplicity of licensing, the multiplicity of regulation. Can the Minister give us information about the numbers of Departments of State, and agencies, who will be concerned in the regulation of radioactive material and the general lines of demarcation between them?

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  That is set out in section 6 (i):

The Minister may, after consultation with the Ministers for Finance, Industry and Commerce, Agriculture and Fisheries, Labour, Health and External Affairs, by order regulate, restrict, or prohibit (save under licence issued by him or by the Board as his agent) the custody, use, manufacture, importation...

and so on of radioactive material. The relevant Ministries and the relevant agencies are all incorporated there.

Professor Dooge: Information on James CI Dooge  Zoom on James CI Dooge  My query is a little more specific. The listing in subsection (1) indicates they are concerned. My query is: How many of these have power to issue regulations in regard to the control of radioactive substances?

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  Under existing legislation, actually the Department of Labour can do it from the workers' safety point of view. The Department of Health can do it under existing legislation in regard to the safety of radioactive materials used in hospitals, clinics and health generally. That is the situation at the present time. The Minister for Transport and Power is getting the power here to deal with it as under subsections (2) and (3). At the present time—so far, anyway—the only people statutorily entitled are Labour and Health.

Professor Dooge: Information on James CI Dooge  Zoom on James CI Dooge  This is under the Act of 1953 in regard to the Department of Health?

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  And under the safety legislation as far as the Minister for Labour is concerned.

[708]Professor Dooge: Information on James CI Dooge  Zoom on James CI Dooge  These are the code of Factory Acts.

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  Factory Acts, Yes.

Mr. Sheldon: Information on William Alexander Sheldon  Zoom on William Alexander Sheldon  Just one thing arising out of the phraseology of subsection (1). I take it that, in every case the Minister must consult with all those Ministers. I was visualising possibly cases which would concern only Health and why should Agriculture and Fisheries, Finance and everyone else be consulted? It says “and”. They are all lumped together: they must all be consulted. It strikes me that this is the sort of thing that could add to a great deal of paper work between Departments. I think most people would agree there is too much of that already.

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  As the developments envisaged by the Bill proceed in years ahead, the other Departments referred to will obviously become involved. Agriculture and Fisheries, for instance, in regard to soil treatment, could conceivably be involved with the radioactive material. Industry and Commerce obviously could be involved from the manufacture and production point of view. Finance could be involved from the financial point of view. From the point of view of international conventions and arrangements External Affairs, could be involved in regard to the distribution of this type of material. In 99.9 per cent of cases, this will be just a formality. In fact, it will be the Minister for Transport and Power and/or the board who will really do it.

Dr. Belton: Information on Richard Belton  Zoom on Richard Belton  I think Senator Sheldon's point that, if the particular issue at any time refers to any one Department, no other Department should be brought into it. He cited Health. Why, then, make it all-embracing—that all the others should be considered at the same time? If an issue arises pertaining solely to the Department of Health, as Senator Sheldon mentioned, why involve all the other Departments as well? Is that Senator Sheldon's point?

Mr. Sheldon: Information on William Alexander Sheldon  Zoom on William Alexander Sheldon  Yes.

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  It is my Department's order. Once the order is made, [709] there is complete freedom of action for the Minister for Transport and Power and the board. That is, consultation is connected with the preparation of the order under which the action will proceed.

Dr. Belton: Information on Richard Belton  Zoom on Richard Belton  It is what is in the order? The actual carrying-out of what is in the order will refer to one Department: no other Department will be consulted at that time? I see.

Professor Jessop: Information on William JE Jessop  Zoom on William JE Jessop  It is quite a common thing for health matters in other Departments to be looked after by these Departments and not by the Department of Health. The Minister for Industry and Commerce has control of health matters in the various industries and factories. Factory doctors are appointed not by the Department of Health but under the Minister for Industry and Commerce. So there is this, as it were, relationship between health and various organisations and activities where health matters arise. Provided it is done not all in a bundle, as Senator Sheldon seems to fear, it is quite reasonable to have these other Departments mentioned in it.

I think a lot of the trouble under this licensing and inspection arrangement would be avoided in the draw-up of the definition of “radioactive substances” which we referred to the last day. When that is properly done, I think then we can have a much freer view of what is going to take place.

Question put and agreed to.

Question proposed: “That section 7 stand part of the Bill.”

Professor Dooge: Information on James CI Dooge  Zoom on James CI Dooge  In the course of this debate, it has emerged that Members of the House are concerned about the dual function of this board —the fact that the board will be concerned with schemes for the production of nuclear power and also with regulatory agencies. I do not want to go into the merits of this on this section: we shall be discussing it again on Report Stage. If we proceed, as the Minister would like to proceed, giving [710] all these functions, operated by separate boards in Britain but by the one board here, I wonder if he is perhaps being a little restricting in limiting the number of the board to seven? If we were thinking of a board to operate just one function then I think, indeed, the number is a good one. The number is probably about the optimum number for such an operation. If what would be in Britain two boards is in this country to be one board, I wonder if the Minister might not be better advised to leave this somewhat loose —perhaps not to specify the precise figure but to give a range of not less than five or more than nine, or something of this type, so that, as the work of this board develops, the Minister could appoint what he thought was an appropriate number to the board at any particular time.

Mrs. Robinson: Information on Mary Robinson  Zoom on Mary Robinson  I want to make the comment, also agreeing with Senator Dooge, that not only do I think that this might possibly be a small number of members of the board but, on the wording of it, it would be possible to have a board of two people. I do not think this is the intent of the Minister but there is no figure that the board must be composed of, so it could be composed of two people—one of them being the chairman, I suppose, and the other being an ordinary member of the board—and not more than seven. I should be inclined to agree with him, because of the nature of the board's functions, that possibly this will be found to be rather restrictive.

I should like to know, on the drafting of it, why the Minister for Transport and Power has found it necessary at every stage—I can understand in the remuneration but in the appointment and even if he wishes to remove a member of the board—to have the consent of the Minister for Finance. It seems rather unusual that the Minister himself cannot decide since the members of the board will hold their tenure, with the consent of the Minister. Why does he need further consent from the Minister for Finance? I note, under section 9, that the Minister, again, in appointing the chairman, must get the consent of the [711] Minister for Finance. Is there a particular reason for this? If not, why could the Minister, as the appropriate Minister under the section, not take the responsibility on his own?

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  I will take the last one first, this being a stock phrase incorporated in recent legislation dealing with State sponsored boards. It is proper as it brings the Minister for Finance more into these matters. The thinking behind this is to make for more collective Government responsibility. The situation in the earlier Acts establishing State-sponsored bodies was that the Minister alone had the sole authority. It makes for greater collective responsibility within the Government to have the Minister for Finance involved in such appointments along with the relevant Minister, thereby bringing the Government, as a collective body, into such decisions to a greater degree.

As regards the question of not more than seven, it is set out in section 11 (7) that the quorum of the board shall be three. We must at least have three; the intention is to appoint seven. We have discussed this with the various international nuclear agencies and they advise that seven appears to be the proposal that emerges as being the most practical. Indeed, from our own experience here in dealing with bodies of this kind—State agencies, State sponsored bodies—the figure of around seven is the one that gives the maximum of experience and breadth of knowledge. At the same time, it is consistent with the efficient working of a board. If there are more than seven it could lead to trouble and if there are less than seven there could be less spread of experience. From my own knowledge of State-sponsored organisations I would say that seven is the ideal figure. I do not think anything else arises.

Mr. Sheldon: Information on William Alexander Sheldon  Zoom on William Alexander Sheldon  I am wondering about one point under subsection (3). The Minister very properly is making sure that a person that has been on the board for a while can never be on it again. Is this too limiting? It refers only to the effluxion of time. Surely it could be possible for a person to cease [712] to be a member of the board for some other reason? It might be wished that he should become a member later on. This appears to me to act as a prevention against that happening. It is almost too limiting. Supposing someone was away for a year, and had to retire and then returned and the Minister wanted to put him back on the board, he just could not do it.

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  I take the Senator's point. Indeed, it appears to be unduly restrictive to limit it to effluxion of time. It could be illness; it could be absence from the country or a number of other factors that might make an admirable person ineligible for reappointment. We will check on that between now and Report Stage with a view to deleting that and to have it read simpliciter that a member of a board whose term of office expires shall be eligible for reappointment.

Professor Dooge: Information on James CI Dooge  Zoom on James CI Dooge  I cannot allow the continued appearance of the word “effluxion” to pass without registering once more a protest against it. I know that it is beloved of the parliamentary draftsman, and maybe it is his and Senator Sheldon's love for the word that is responsible for the introduction of this particular subsection. I wish to point out to the House, once again, that the standard dictionaries give the secondary meaning of the word “effluxion” as “abortion”. It is a good description of this particular word. I have great admiration for our parliamentary draftsmen. That admiration would grow to new heights if they could manage to avoid this particular phrase which lingers on from earlier centuries to the annoyance of at least one legislator.

Mr. Sheldon: Information on William Alexander Sheldon  Zoom on William Alexander Sheldon  I want to deny the soft impeachment. My recollection is that the word first appeared in statutes under the aegis of a very very prominent former Minister for Local Government who had a passion for it.

Professor Dooge: Information on James CI Dooge  Zoom on James CI Dooge  There is a time for all passions to be spent. Just returning to an earlier point, I agree with the Minister when he says that about seven is the appropriate number [713] for this board. I fail to see how he goes from the opinion of “about seven” being the correct number to the precision of binding himself to appoint seven, no more and no less. It would be entirely appropriate in most instances if seven were to be appointed. I think it inappropriate that there should not be some freedom in the particular subsection.

I want to raise another point under subsection (5), that is, that a member of the board may at any time resign his office as member by letter sent to the Minister and the resignation shall take effect upon receipt of the letter. I would like to raise here the meaning of “receipt of the letter”. It may well be that we would have in a body such as the Nuclear Energy Board very sharp differences of policy. A member of the board might well resign over policy. I would like it to be clear beyond any doubt whatsoever that “receipt of the letter” means receipt of the letter by the Minister personally. I should hate to think that under the Ministers and Secretaries Act receipt in a Department of a letter of resignation addressed to the Minister would immediately bring about the automatic resignation of that person without that letter having reached the actual Minister to whom it was addressed.

Professor Jessop: Information on William JE Jessop  Zoom on William JE Jessop  Does this mean that a member of the board cannot give notice of his pending resignation? If he wants to resign he sends the letter. As soon as the Minister gets the letter the resignation takes effect. If he were to say to the Minister: “I would like to resign as from the 20th of next month” he cannot do that because if his letter arrives on the first of the month then that is the end of his term of office on the board.

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  I will have a look at this, because it could happen that the Minister might like to persuade the member to change his or her mind.

Professor Dooge: Information on James CI Dooge  Zoom on James CI Dooge  It is too tightly drafted.

Question put and agreed to.

Question proposed: “That section 8 stand part of the Bill.”

Professor Dooge: Information on James CI Dooge  Zoom on James CI Dooge  I should like to raise a point here which is largely a point of clarification. Section 8 provides that a member of the board should be paid out of the funds that fall to the board such remuneration as may be agreed. I should like to ask if the wording here in regard to remuneration of the member of the board allows for distinguishing different rates of remuneration for different members of the board and if it allows, in particular, for a particular rate of remuneration for the chairman. In the plain reading of it, it allows for a rate of remuneration to be fixed for “a member” of the board, thus putting them all on the same basis.

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  It is drafted globally, but the remuneration is a matter for decision. I do not see a situation where we will have board members paid at different rates. That would be a most unusual practice and there is no precedent for it. All members of every State agency, board or commission are paid the same rate. Rates vary from board to board but they are paid the same rate and the chairman is paid a specific rate over what the board members are paid. No decision has been made on this yet.

Professor Dooge: Information on James CI Dooge  Zoom on James CI Dooge  Does the Minister not agree that there is a slight difficulty here? The subsection says: “A member of the Board shall be paid... such remuneration...” Does this allow the chairman to be paid at a separate rate?

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  It does. In fact, it leaves it flexible. It does not say the chairman but in practice, of course, it would be the chairman.

Dr. West: Information on Timothy Trevor West  Zoom on Timothy Trevor West  Does the Minister intend the chairman of the board to be a full-time officer or does he intend all members of the board to be part-time members? Presumably, the ordinary members of the board will be part-time appointments, but what is the position of the chairman?

[715]Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  At present, our policy, as I said on the last occasion here is to get this board off the ground, and we will learn by experience from the expert advice that we hope to get from the board. In the initial stages it is envisaged that the chairman and members of the board will all be part-time but expert representatives of the various university, technological, business, power, health and safety fields, people who are concerned with this matter. However, the section, as drafted, is flexible enough to provide for a whole-time chairman and whole-time board members, if necessary. If this development advances the way we envisage it advancing in the future, there may be need for a whole-time chairman and whole-time board members. This is a very real possibility and the section, as drafted, leaves it open to proceed either way. The thinking at the moment is to proceed by way of having a part-time chairman and part-time board and, if necessary, if the work load develops—as it probably will develop—to have a full-time chairman and full-time board members, as required.

Professor Dooge: Information on James CI Dooge  Zoom on James CI Dooge  I think it appropriate to make some provision in regard to superannuation if it is anticipated that this will be done under the present Bill. I am talking about the superannuation of the full-time chairman.

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  If we move on to the sort of development I envisage— a whole-time chairman—we will have to bring in new legislation. There is no question about that.

Mr. Sheldon: Information on William Alexander Sheldon  Zoom on William Alexander Sheldon  On that point I trust the Minister will clarify this because I have a recollection that the Statutory Instruments Committee were in trouble over the chairman of the Central Bank, as to whether or not he was an officer. If the Minister would just check the legality of this it would be no harm.

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  As section 14 is drafted, it refers to officers and servants of the board, so that the chairman and board members are not included. If a wholetime chairman or wholetime board members had to be [716] appointed, new legislation would certainly be necessary.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  Arising from what the Minister has just said, where does it appear that a member of the board is not an officer? Is this by some sort of implication? The ordinary director of a company is the one person who is certainly an officer of the company, and not by any particular definition, either.

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  Officers and servants of the board are defined under section 12:

The board shall appoint such and so many persons to be officers and servants of the board as it from time to time thinks proper.

That excludes members of the board unless they appoint one of themselves.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  With respect I would submit that does not necessarily follow. For example, the auditor of a company is appointed by the directors of the company and he is an officer of the company. Does the mere fact that certain officers can appoint other persons mean that the other persons are not appointed to offices or that the persons who appoint them are not themselves officers? I would have thought that, if this came to an argument, the members of the board would be found to be officers.

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  It is an interesting point.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  You can put it in that they are not officers if you want to and then you get rid of it.

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  Senator Sheldon's point is more valid. I am not quite sure of my legal ground here, but I think it has been held that the board member is not a servant or officer of the board. I will check on that between now and Report Stage.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  I am trying to be helpful.

Question put and agreed to.

Question proposed: “That section 9 stand part of the Bill.”

[717]Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  I have one point on this. Subsection (3) seems to conflict with subsection (5) of section 7 because subsection (3) purports to prevent the chairman ceasing to be chairman until the next meeting of the board held after the board has been informed by the Minister of the resignation; but the chairman, if he wants to be immediately shut of the job—as very often is the situation when someone wants to resign—can very easily resign from his office as a member of the board under subsection (5) of section 7. He will thereupon, under subsection (4) of section 9, cease to be chairman.

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  I propose to delete from subsection (5) of section 7 “...and the resignation shall take effect on receipt of the letter”. That goes some of the way to meet the point.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  The resignation can be made take effect if he wants to cease to be chairman by his simply resigning from the board under section 7?

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  That is right.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  Subsection (5) renders nugatory the provisions of subsection (3) of section 9.

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  That is arguable. We will have a look at that, too.

Professor Dooge: Information on James CI Dooge  Zoom on James CI Dooge  It would be best if they were all looked at together.

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  Yes.

Question put and agreed to.

Question proposed: “That section 10 stand part of the Bill”.

Professor Dooge: Information on James CI Dooge  Zoom on James CI Dooge  On this section the Minister has told us—we agree with him—that he looks to the members of this board as being members with particular expert knowledge and experience. Accordingly, I wonder if section 10 is not rather tightly drafted in that regard. In particular I wonder if the preclusion of a person taking part in any deliberation or decision in regard to a contract with a company or [718] concern in which they had any interest is not, as I say, drawing this section a bit too tightly. It may well be that the courts would interpret “interest” here as being pecuniary or financial interest, but I think it might be preferable if this were spelt out. If for example, somebody who was either a director or a senior staff member of the Electricity Supply Board were to be a member of the board, one could conceive of circumstances in which the Electricity Supply Board would have a pecuniary interest in a matter which was under deliberation. There are many other matters in which the Electricity Supply Board would have an interest, as being the body largely concerned with the production of nuclear power and the control of materials. I merely raise the point for clarification. While it is quite proper to avoid any conflict of interest based on a person having a financial stake in a particular concern, perhaps the word “interest” here is rather broad and the prohibition might be made more particular.

Dr. West: Information on Timothy Trevor West  Zoom on Timothy Trevor West  I agree with Professor Dooge here. I think we have got to be careful and remember that in a small country like this we want to be able to draw on the total pool of expert knowledge and experience available and I would feel unhappy if the wording of section 10 did not allow suitable persons from the Electricity Supply Board to sit on the Nuclear Energy Board. I would like to have the Minister's clarification on this particular point.

Ruairí Brugha: Information on Ruairí Brugha  Zoom on Ruairí Brugha  What would strike me here is the question of the difference between “deliberation” and “decision”. I agree with Senator Dooge— Senator West touched on this also— that you may have a situation in which you would want to have the opinion and the experience of members of the board. My own experience, having been on a board, is that in order to see that nothing improper can even appear to happen the question of decision would come in. The question of deliberation would not. Perhaps the Minister would take a look at that.

[719]Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  At the same time, we all know how important it is to retain integrity and respect for public institutions. Justice must be seen to be done as well as be done. This provision is a usual one in articles of association for private companies and indeed, in all the various Acts setting up State-sponsored bodies. I would not like to depart from it in this case, particularly when it is quite clear here that it relates to any contract the board may undertake. In practice, if we read section 10 as a whole, the effect of it is that, if there is an interest involved—and in my reading of it it is a financial interest because it relates to “any deliberation or decision of the Board relating to a contract which the board proposes to make—it is very desirable that a person on a board who has got an interest in any contract which the board proposes to make should not take part in any deliberations or decisions concerning the making or adjusting of that contract. A contract implies profit or loss or business, and it is quite clear what “interest” means in this context. I want to make sure that this board, when established, will be pristine, pure and seen to be concerned with its subject and that it will be composed of people who will be above suspicion. In a board of this kind, which is concerned with a most important future development, we should not depart from any practice which might impugn a lack of integrity or respect in regard to its membership.

Dr. West: Information on Timothy Trevor West  Zoom on Timothy Trevor West  I should like clarification of the point I raised. Does this section preclude members of the Electricity Supply Board from sitting?

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  All the section says is that, if the board appear to be making some sort of contract with the ESB in regard to the sale, quotation, purchase or otherwise of any article of material or device of any kind, in regard to the working out of a business contract in respect of this particular material or device between the board and the ESB obviously the representative of the ESB on the board—his interest would be known so it is largely academic—would take no part in any deliberation or decision of the board [720] relating to such a contract, he remains a member of the board and I think it is quite proper that he should.

Professor Dooge: Information on James CI Dooge  Zoom on James CI Dooge  With respect, does the Minister think that it is all that proper? There are two points. Firstly, the Minister appears quite content that we can take “interest” as being pecuniary interest. This relieves one of my worries. Even so, I think, as Senator Brugha has said, to exclude such a person from all deliberations may be unduly restrictive. If it is a question of a possible contract with say, the Electricity Supply Board, or any contract which involves the operations of the Electricity Supply Board, this means that any person who is a director or employee of the Electricity Supply Board must sit mute at that particular meeting. It means that, in fact, he cannot offer his opinion to the board. If the chairman turns to him for a point of clarification he must refuse to speak. There is certainly a point here, as Senator Brugha has said, in regard to the deliberations. It might well be that we could ask him to declare his interest—this should be recorded in the minutes—and that he should take no part in the deliberations except on invitation of the chairman, and then take no part in the decision. To exclude him completely, even from answering questions or from giving information or a judgment, would be unduly restrictive. We are all agreed on the principle of this but perhaps, in the interest of the “pristinity” about which the Minister was talking, we may have gone a little too far.

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  I will have a look at that on Report Stage but I would point out that “deliberation” does lead to “decision” and part of the decision-making process involves deliberation and the deliberation may colour the decision. I think the two are entwined in any such process.

Professor Dooge: Information on James CI Dooge  Zoom on James CI Dooge  But the lack of informed deliberation can lead to bad decisions.

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  This is true. I will have another look at it.

[721]Mr. Sheldon: Information on William Alexander Sheldon  Zoom on William Alexander Sheldon  I am inclined to agree with the Minister. I do not see how, in relation to contract, you can divorce “deliberation” and “decision”. I would have thought that it might be possible in reply to a request by the chairman or a member of the board for information to be given on a point, that this is hardly taking part in deliberations. This point could possibly be got over in that way: that to answer a net question is not quite a deliberation. Deliberation, I feel, has a sense of argument for and against whereas in a question like: “Do you want ten kilowatts or 1,000 kilowatts?” he just says which, and it is not quite deliberating on it. “Deliberation” is a nice, vague word when you start to think about it. On balance, I would certainly agree with the Minister. You cannot divorce “deliberation” from “decision” in regard to a contract.

Dr. West: Information on Timothy Trevor West  Zoom on Timothy Trevor West  Take the position of a member of the Electricity Supply Board sitting on the Nuclear Energy Board when discussion comes up, under section 5, subsection (1) (b) of this Bill, advising the Minister on proposals for the construction, installation, operation and supervision of a nuclear power station. Surely it would be very important that the member of the Electricity Supply Board would be allowed to speak? This would come up under a contract which the board might propose to make. Surely it would be very important that the member of the Electricity Supply Board be given a full chance to air his views on a contract of this nature?

Ruairí Brugha: Information on Ruairí Brugha  Zoom on Ruairí Brugha  Perhaps one could distinguish between “discussion” and “deliberation” because deliberation, as the Minister said, is part of the decision, but discussion is not necessarily so.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  I must correct the Minister in one thing he said. He said that it is usual to have a provision of this kind in articles of companies. It is neither true of public companies nor private companies. If you adopted without amendment the provisions of the Companies Act, if you adopted the regulations and did not make any change in them, the language [722] is very explicit. One of the points I am fond of making with regard to this Act is that it has been receiving consideration for 120 years or thereabouts and has got the benefit of all sorts of judicial interpretation as to the meaning of language, and words like “deliberation” do not appear at all. I think an amendment could easily be made which would effect a remarkable improvement in this section. Perhaps I would be permitted to say what appears in the regulation relative to a public company, which is relaxed very much in the case of a private company:

A director shall not vote in respect of any contract or arrangement in which he is so interested

——an earlier regulation requires him to declare his interest——

and if he so votes his vote shall not be counted.

It further states:

nor shall he be counted in the quorum present at the meeting.

Under this section he could be counted in the quorum present at the meeting. He could be a formidable character whose very presence, silent though it might be, might procure what he wanted. I am not going to give a lot of the exceptions. These provisions do not apply to certain things and I will not go into that. For the record, it is Regulation 84, Table A, First Schedule of the Companies Act, 1963. They go on to say at the end something which again might be considered desirable:

“...and these prohibitions may, at any time, be suspended or relaxed to any extent and either generally or in respect of any particular contract, arrangement or transaction by the company in general meeting.”

Now, you might not think it right, in relation to a body receiving public money and having such responsibility as this body would have, that the body could have the power to relax. The Minister might be given the power to relax in relation to a particular transaction that a certain individual, having disclosed his interest, would be free to vote and be counted in the quorum. I offer that to the House on that particular aspect [723] of this matter. I have other points to make but I should like the Minister to observe on that.

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  I will certainly look into this to see whether we can make it more open, as it were, in view of the points that have been put here by Senators. I am very concerned that we do not have any section dealing with any other public body that would in any way impute or impugn motives, rightly or wrongly, to particular people on the board. If I can improve the terminology of the section I shall certainly do so. I will check with the Companies Act and the phraseology used in respect of other State-sponsored bodies. I know the wish of the Seanad is not to lose the expert knowledge and experience that can be given by such a person, even if that person has an interest, so long as that person is excluded from any decision or any vote taking. I take it that is the view of the Seanad. I cannot go very far in that direction but I will see how far I may go.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  I have a few more points to make on this section. I have been advised by a very experienced parliamentarian that at Committee Stage it is unwise to make more than one point, because there is a chance that one point will be dealt with, but if you make—as I propose to do—a few points, they may get lost. I do not know if Members are familiar with the joke about President Johnson, when it was said that he had put the country in his wife's name.

Ruairí Brugha: Information on Ruairí Brugha  Zoom on Ruairí Brugha  It was General Dayan who said “another war in his wife's name.”

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  I see. At any rate the point is that interest here should not be merely the interest of the member but the interest of the member's family. He or his wife or his children could be beneficiaries under a trust. His own interest is very easily avoided. He does not have to talk to too many people to discover that an interest would be an interest of his own but not an interest of his wife or an interest of a trust established by him for the benefit of his children.

[724]Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  I would presume he had an interest in his wife.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  I can tell the Minister that he would not have an interest within the sense intended by this section. That is the first point I want to make about it.

The second point is that I am unhappy with the language here. “Any interest in any company or concern with which the board proposes to make any contract.” At what point in the management of what may be a great big company do the members of the board learn that, in fact, officers or servants of the board have been planning and preparing applications to come to the board? Eventually the board may initiate an inquiry along a particular line and the people concerned will bring that along to the point where they think it is right that the board should make a decision as to where the contract should be placed. At what point has the board proposed to make the contract? Is it when somebody employed by the board starts negotiating and does not waste the time of the board until he has brought the negotiations to the point where a decision is required?

I should have thought “proposes to make a contract”, if it is to be used, should include “of which the members of the board are aware” or something of that kind—some language which clearly calls on them to declare their interest. There may be proposals made on the board's behalf before the members of the board are aware of these proposals at all.

The third point is this. When is the member to disclose his interest to the board and, in fact, the nature of it? It is usual, and I think it would be desirable, to do so at the first meeting of the board held after he has acquired the interest. The member may not have had an interest at the time of one meeting but may have acquired it by the time another is held. It is at that meeting he should make his disclosure, but not until then.

The final point is this. I do not understand this measure as I should, in all its aspects, but I understand that there may be substantial contracts entered [725] into by the board at some stages. I think it prudent for the Minister to consider whether he should not add “failure to disclose an interest shall not invalidate any contract entered into by the board”. What happens if you find yourself having a contract with an American company, well-advised by American lawyers, who wanted to get out of their contract and who tried to rely on this section to escape liability? I think it important that the board should not be damaged, or the interests of the board damaged, by the failure of a member to disclose his interest. Indeed, the American company could have made arrangements for it.

Ruairí Brugha: Information on Ruairí Brugha  Zoom on Ruairí Brugha  That is a great reflection on the American companies.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  I am sorry.

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  It is an interesting point. In regard to the other points made by the Senator, I am not so much in sympathy with this question of when the board ascertain to what extent the company is coming in in which a member of the board has an interest. I do not know what sort of drafting could cover that type of situation. However, there is some validity in the Senator's last point. I should not like to see a situation in which a company with no business being done, and a contract signed, could escape liability on the basis that a member of the board had an interest. It should be ensured that such a contract would not be invalidated by reason of the participation in the deliberations or decisions by a member of the board who had an interest. The Senator made a further point concerning——

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  Family interest.

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  I should like to check on that. My immediate reading of it is that it is covered, that a member of the board “who has any interest in any company or concern” would include family interest.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  A similar provision in the Companies Act, 1908, was thought not to have been covered.

[726]Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  That has been held by the courts?

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  We are not going to tell the House that. I do know that specific provisions to take in trusts and wives are in your Companies Act.

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  I will check on that between now and Report Stage with a view to adopting the phraseology in the Companies Act, which is phraseology well tried and tested over the years. If we enacted the Companies Act clause in toto it would be much safer.

Question put and agreed to.

Section 11 agreed to.

Question proposed: “That section 12 stand part of the Bill.”

Professor Dooge: Information on James CI Dooge  Zoom on James CI Dooge  There are two points arising on section 12 in regard to the officers and servants of the board. The first one that I should like to refer to arises in subsection (3) and is concerned with the payment of remuneration and allowances to the officers and servants of the board which are subject to the approval of the Minister. What is the intention in regard to such officers and servants? Are they to be subject to conciliation and arbitration machinery or what would be the form of industrial relations which the Minister would anticipate?

Miss Owens: Information on Evelyn P Owens  Zoom on Evelyn P Owens  On this section I should like to ask the Minister why we have to have this terminology “officer” and “servant”? This to me smacks of class distinction and goes back to the days when blue-collar workers were considered as servants and white-collar workers were considered as something superior. I should like to see this raised on all the sections, that “officers” and “servants” be removed and supplanted by one simple term of “employees”.

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  That is my own view too. This is outdated phraseology. The ramifications of “officers” and [727]“servants” are quite amazing. This phrase is in every piece of legislation going back for years. You might run into legal trouble if you started changing it now. It is a well-tested definition. Everybody knows what “officers” and “servants” mean. We do not want to start people inquiring why we changed from “officers and servants” to “employees” and probably imputing from the change in terminology some motive that is not there. That is the sort of unfortunate reality that might arise in regard to a matter like this if it came before the courts. We are, therefore, sticking to the established and tried definition and phraseology. I agree it is outdated. I shall have a good look at it some day, perhaps get all the statutes together and eliminate it entirely.

Miss Owens: Information on Evelyn P Owens  Zoom on Evelyn P Owens  I am glad to hear that the Minister is sympathetic to my point of view. However, I feel that by continuing it into another piece of legislation in 1971 we are just continuing the bad old days. At some stage we will have to say “stop” and have a look at it. As far as I understand, the legal ramifications of it are mostly tied up with the superannuation provisions.

In section 14 the Minister gives the board power to draw up a superannuation scheme. Surely in the scheme under this Bill you could use the word “employee” and have the same provisions for all the officers and servants of the board who would all be termed employees under the superannuation scheme. Therefore the legal difficulties—I accept they exist in all the statutes I have seen—would be eliminated. I think 1971 is the time to start.

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  As far as I am concerned, and as far as the officers in my Department are concerned, we had a good healthy row with the draftsman on this very point. We wanted “employees” put in and he insisted on retaining “officers and servants” there for one of the reasons mentioned just now, the superannuation code. The words “officers and servants” are used throughout every section of the superannuation code. [728] As the Seanad are aware, the superannuation code is very involved, being concerned with many statutes passed over the years. The draftsman felt that in some way a person might be prejudiced by reason of not being defined as “he” or “she” is defined in the superannuation code. However, I shall go back to the draftsman and bring the Senator's view to his notice. I am fully in accord with that point of view. There was another point made by Senator Dooge on this section as well——

Professor Dooge: Information on James CI Dooge  Zoom on James CI Dooge  Conciliation and arbitration.

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  The Civil Service procedure would not apply here.

Miss Owens: Information on Evelyn P Owens  Zoom on Evelyn P Owens  There are other procedures.

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  That is right. In this case we are not dealing with an ordinary type of board. There will be much expert, and certainly costly, employment on a board of this kind. This is employment for which the ordinary type of conciliation and arbitration procedures, such as we have, say, in the Public Service, are not ideally suited. It is essential that the board should be at liberty to negotiate conditions of employment for their staff, because of the particularly specialised knowledge that many of the staff of this board will have to have, and which will be very costly knowledge as well.

Professor Dooge: Information on James CI Dooge  Zoom on James CI Dooge  I am very glad to hear the Minister on this point. I hope this means that when proposals come from the board in regard to such staff, as they do have to come for the approval of the Minister and for the ultimate approval of the Minister for Finance, that these facts will be remembered by both the Minister and his colleague. I hope it will not be said that these people, though not formally under conciliation and arbitration, must be brought within its ambit indirectly through the Minister's powers of approval or disapproval under subsection (3).

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  May I refer to what has been said under subsection [729] (3). It is well known that there is a different position prevailing with regard to the chief executive officer in some State bodies from which prevails in other State bodies. The Minister for Finance is in no position to prevent the body in question paying the salary for the job to get the right man. In this case the Minister for Finance will be in a position to prevent that. It is correct to say that in all cases other than the chief executive officer the Minister is in control of what the board may pay— and not necessarily with desirable consequences in every case. I should have thought that, in relation to this body, the board must be trusted to take the best advice as to what the board will have to pay by way of remuneration to get the key man for the job. I have no particular reason to argue on any basis for such key men, but it is inevitable that the scale of remuneration in the Public Service must affect the judgment of the Minister for Transport and Power as to what is reasonable, even though the board may have taken the best possible advice on how to secure the services of the man with the qualities required by the job. For the efficiency of this board, I suggest strongly that the Minister ought to consider the wisdom of the policy proposed in relation to this.

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  The Senator has opened up a very wide-ranging field, that is, the whole question of governmental control of State-sponsored bodies generally. This is germane to the present investigation by Mr. Devlin and his committee into the whole system of remuneration in State-sponsored organisations and in the Public Service generally. The objective in recent years by conscious Government policy has been to remedy the disparities that have been there over a number of years and that have arisen under various statutes passed without any thread of application of common principle.

In legislation establishing very recent bodies the terminology has been on these lines all the time: that the relevant Minister, with the consent of the Minister for Finance, may decide. This is one of the main recommendations also in the report on the Public Service [730] that we had to hand some months ago from Mr. Devlin. Apart from the remuneration aspect, one of the main recommendations there is that the various State-sponsored bodies should be to a greater degree brought under the umbrella of Government so that a consistent policy be seen to operate right through, both in regard to organisation and administration and to remuneration. There is also the further point that Committees of the Oireachtas should act on an overlordship basis, as it were, in regard to these State companies—that the various chief executives of these State companies should come before Oireachtas Committees on the same basis as the account officers of the various Departments come before the Committee of Public Accounts at the moment.

All of this is very desirable and that is why in recent legislation we have been adopting a constant formula in regard to this matter. The purpose is, as far as possible, to put the terms of appointment, remuneration and administrative relations between State bodies and the Oireachtas on a common basis so that the disparities in regard to the remuneration and administration and the relationship between Government Departments and the Oireachtas be removed and that we have instead a rational method of dealing with State-sponsored organisations on the basis of accountability to the Government and accountability to the Oireachtas.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  I am grateful to the Minister for explaining what is the position in this matter and informing me at any rate—other Members of the House may have known about this—that this development in this section represents a recent policy. I do not know what the Minister means when he talks about a common policy with regard to State bodies and the authorities generally concerned to administer our affairs. I would argue most strongly that, if this means that the chief executive officer in one body is to be paid the same salary as the chief executive in another, the policy is entirely wrong.

We are going to have in this case, if I understand what is proposed, a [731] body vested with extraordinary power, extraordinary responsibility, a body whose chief executive officer is not merely going to be someone with a competency, training and experience in affairs——

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  I did not suggest they all get the same.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  May I just complete the point?

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  Yes, sorry.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  Not merely is he to have this business experience, professional training, proven skill, but no doubt he will be as lucid as Senator Dooge is when addressing this House on this subject. Despite my own degree of skill, or whatever competency I may have, I cannot profess to have understood fully all that Senator Dooge was saying, nor what the Minister was saying in reply. The sort of person we are going to have in charge of this body is a person who is not merely shrewd and intelligent in dealing with people, trained in all the modern skills in relation to affairs, but he is a person who understands the ways of scientists and the language of scientists. Otherwise, he would not be able to reach or advise the board on the right decisions. Such a person must be paid, perhaps, a salary which will stagger everybody, particularly the Minister for Finance and his advisers.

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  As long as it is known.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  I am suggesting that the old practice may have been the better one. You may get better men for the job. The people we are considering now will be looking after a lot of money; the mistakes they make could cost the State a lot of money. I may be wasting my breath in this pleasant room talking on this subject but I do, at any rate, want to go on record as saying that that is my view of it. If I were in the Minister's position, which I never shall be, I would amend this section to make this exception.

[732]Ruairí Brugha: Information on Ruairí Brugha  Zoom on Ruairí Brugha  I think Senator FitzGerald has a point here, particularly in relation to such an important body as this. You do not want to find yourself—I am sure what the Minister has said has covered it—in the silly position that you cannot command the qualities you want for an organisation as important as this. The difficulty I see, as the Minister mentioned, in opening a wide area is the possible influence that a very high salary may have on many other areas. Nevertheless, I think that in the case of this body you may need to have a high degree of flexibility because you have got to get the person with right qualities.

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  There is no question but that the chief executive in a position like this would have to be paid on a basis unrelated to any other executive post in the country because very specialised qualities are required. What I was suggesting was that the same system of remuneration should apply to all State bodies. On a formula such as is incorporated here the relevant Minister, with the consent of the Minister for Finance, should fix the remuneration. Obviously, the remuneration in this case, if we are to get the right man, could be quite an expensive item. But it is the system of fixing the remuneration that I feel, and the Government feel, should be on a common basis. At present you have so many variations of the method of appointment and the method of remuneration in regard to the chief executives of State-sponsored bodies that it just does not make sense. In some cases one cannot even get the information by way of question in the Dáil because the particular legislation is drawn in such a way as to make it entirely the prerogative of the board and the Minister cannot inquire into it and the legislator cannot inquire into it. I think this is indefensible.

I feel that this whole question should be on a straightforward, open basis. There will be variations in the remuneration, of course, depending on the job to be filled and the person to be appointed. But at least there should be a straightforward system of appointment and of remuneration common to [733] all State-sponsored agencies. This information should be available to the Government and to the Oireachtas, and I look forward to the time when Oireachtas Committees can have such chief executives before them to outline their work, their policies and their expenditure. This is very desirable. The other practice has grown up over the years because we established our various State-sponsored bodies on an ad hoc basis, meeting a situation with ad hoc legislation. Now is the time to co-ordinate these various State-sponsored bodies and to ensure that the Government—and the Oireachtas above all else—can have all of these bodies under an umbrella where, consistent with public policy, the fullest investigation can take place and the fullest knowledge is made plain, not alone to the Oireachtas and the Government, but to the public in regard to the activities of such bodies.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  I share the Minister's view that there ought to be procedures whereby the public, through its representatives, are able to have, in some fashion—perhaps directly and not even through committees— control over the operations of State bodies. Frankly, if it is found that somebody is being paid, say, £15,000 a year—I mention that figure because I heard of an Irishman who was being paid that amount in Britain and had to be persuaded to vacate his job and come back to run an industry here. I can see what could happen in Dáil Éireann the day it is disclosed that someone is being paid £15,000 a year to run a State body. The danger of one such debate taking place is that no person would be advised to take such a position with a State body. Indeed, in the past certain people's names have been dragged in the mud here—not with my approval—people who were doing magnificent jobs in their positions. It was undesirable that their names should be dragged in the mud. They were tough characters and were able to stand up to it. The House probably knows one or two of those I have in mind. There will be many people who will have the qualities required for this job but who will not be prepared to stand up to this sort of [734] thing and who will not take the job. The Minister should get this information from this board, but does that necessarily oblige the Minister to pass it on? I think the Minister receives a lot of information on all sorts of subjects which he does not choose to give to Dáil Éireann in answer to questions. I do not mean the Minister personally

Mr. O'Higgins: Information on Michael Joseph O'Higgins  Zoom on Michael Joseph O'Higgins  I do not know to what extent this has been covered as I am engaged on another job which prevented me from being here for the full discussion. We are on section 12 (4) which states that the board may at any time remove any officer or servant of the board from being its officer or servant. It seems to me that that provision in subsection (4) is too blunt and too wide. There is no requirement on the board's part to state their reasons why they wish to remove an officer or servant from office. It does not matter, to my mind, from the point of view of presenting the argument, whether the person involved is a servant or an officer or whether the particular office he holds is one of considerable importance or one of lesser importance, I would suggest to the Minister that in ordinary justice there should be an obligation on the board, if they want to remove any officer or servant, to state their reasons for doing so. I would ask the Minister to consider inserting in that subsection the words “for stated reasons”.

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  I do not think there is any need for the addition suggested by the Senator in this matter. There is no detraction from the legal rights the employee has under both statutes and common law. This gives the board this discretion in regard to its officers or servants. Any officer or servant has his or her rights in regard to what legal action he or she may take. It is a standard type of subsection and it is designed to ensure that the board would have complete discretion in regard to the matter of employment of staff.

Mr. O'Higgins: Information on Michael Joseph O'Higgins  Zoom on Michael Joseph O'Higgins  I appreciate that point of view. Perhaps I could have anticipated that that would be the [735] Minister's reply. Possibly I should have dealt in my remarks also with subsection (2). Subsection (2) gives the board certain rights to fix the terms and conditions of employment. It seems to me that it would be open to the board, in fixing the terms and conditions of employment, to incorporate a condition that the officer or servant would not have any right to require the board to furnish information in the event of the board desiring to remove him from his office. If the Minister wants to talk legalities it seems to me to be the legal position that the board would be given authority, implicit in subsection (2), to fix conditions of employment which would preclude the officer or servant requiring reasons in the event of his dismissal. When you couple that with the blunt provision in subsection (4) that the board may at any time remove an officer or servant from the service of the board then it does seem to me that there is danger that circumstances may arise where an officer or servant is removed and is unable to ascertain from the board why he is being removed. I do not see that it weakens this section in any way if the Minister imposed in subsection (4) an obligation on the board to state their reasons in the event of their requiring to remove an officer or a servant.

Dr. Belton: Information on Richard Belton  Zoom on Richard Belton  I rise to emphasise a point. I know that Senator FitzGerald has impressed himself on the Minister. But I feel that the points which Senator FitzGerald made warrant full and detailed consideration. With this Bill we are entering a new field. It is a field which, of necessity, should command the advice or employment of people in very specialised subjects. We will have to utilise the advice, brains or intelligence of nuclear physicists, of mathematicians, maybe of experts in computer services. All over the world today these people are commanding a salary far beyond what we consider here as a good salary, especially salaries given to chairmen or leaders of semi-State bodies. It would not be correct to have second rate individuals advising us, that is, individuals with second rate knowledge; I [736] am sure the Minister will agree with me that we are looking for experts. These people, if they have any ability at all, can command a huge salary. Senator FitzGerald mentioned something in the nature of £15,000 a year, and this is not an exaggeration. These people can command this in other countries. If we are to be comparable in this field of nuclear energy we must employ people who will work, give us the benefit of their advice, knowledge and intelligence and we will also have to pay them on a scale comparable to that which they can command in other parts of the world.

In other semi-State bodies people are not commanding the salaries commanded by people in the field of nuclear physics. I am not saying whether they should or not; I do not know all their abilities. Perhaps some of them should not. I do not want to make an odious comparison, but if we have to get the right men we have got to pay them here—and this, of course, raises a hare immediately.

The people involved in running or advising other State bodies will immediately demand increased salary scales. I do not know the answer to this. It is a fair point to put before the Minister. Specialised knowledge is required here and specialised knowledge cannot be commanded unless those having it are paid on the same standard, or nearly so, as their counterparts in other countries. If we have those people here with these abilities, they will emigrate if they do not get the salary that is commanded generally. Senator FitzGerald has made a very valid point. I have not produced any solution for the Minister, but it is no harm to indicate the difficulties facing him. To that extent I support what Senator FitzGerald has said.

Miss Owens: Information on Evelyn P Owens  Zoom on Evelyn P Owens  In support of what Senator O'Higgins said under subsection (4), I would agree with him that it seems to be presenting the board with a blank cheque for the removal of officers and servants. It may be intended that, under subsection (2), the conditions of employment would cover the type of dismissal and presumably would cover the necessity to inform the employee [737] tion of the State-sponsored organisaas to why it is being done. But subsection (4) does seem to give the board rather dictatorial powers in regard to the removal of officers and servants. Perhaps if the Minister had a look at the local government code he might add another subsection which would give a right of appeal to the Minister. There is a procedure for appeal under the local government code and it might very well be valid in the case of this section also.

I find myself, rather strangely, in agreement with the Minister and not in agreement with Senator FitzGerald on the question of subsection (3). I would not like to go into a debate— even if the Cathaoirleach allowed it— as to whether we should have a review of all higher remunerations. However, I am inclined to think that all the officers and chief executive officers— indeed any grade that is not arbitrable under an existing scheme—should, in fact, come within the scope of the review body. I do not think there is anything wrong with disclosing what salary is offered for the job or what, in fact, the man is getting. Presumably, the post of chief executive officer will be advertised in the public Press. His salary should be stated. The public will have to face the fact that it is going to be a very important post, requiring a high degree of skill and knowledge, and that the proper rate for the job should be paid. I do not think keeping it quiet helps the public in any way, or would help the chief executive officer.

Mr. Sheldon: Information on William Alexander Sheldon  Zoom on William Alexander Sheldon  I want to put to the point raised by Senator O'Higgins, and encouraged by Senator Owens, I find it difficult to visualise their being able to employ either officers or servants if written into the whole contract was something that deprived these officers and servants of their rights. It is going to prove difficult enough getting the right people without writing anything so ridiculous into the terms of employment.

On the other point, I will agree with Senator Owens that I hope the Minister will not listen to Senator FitzGerald. I have been a Member of the [738] Senand for 27 years and in all that time there has been an unending fight to persuade the Executive that it was desirable that any State or semi-State body should be answerable to Parliament and that a Minister should not be allowed to duck behind a provision and say: “This is day-to-day administration; I have no function; the Deputy will get no answer.” In the same way the Public Accounts Committee has advocated time and time again that public bodies should be answerable, because they are dealing with public money. I hope the Minister will stick to this and that we will have full accountability. The people of this country are sophisticated enough to realise—I do not think they are half so silly as some people would make out—that, if you have a very important job requiring a very specialised knowledge and you are in competition with other countries, the job has to be paid for.

I do not think anyone will really baulk at this sort of thing. Of course, you may get the old chap in the pub who says: “Look at what he is getting and I am doing far more”, but you will get that anywhere. If you only pay £2,500 there will be fellows down the country who will say he should not be given any more than a road worker. I do not think the Minister should be put off by this and I imagine he will not.

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  To take the last point first, there is no question but that the chief executive of an organisation such as this will have to be paid at the rate that he or she would command in the international market, and it ought obviously be a very highly paid job. That goes without saying. What I am saying, though, is this: I see nothing wrong with disclosing that. I agree with Senator Sheldon and with Senator Evelyn Owens. I feel we are a more sophisticated and mature race than many people give us credit for—including ourselves. I do not see any reason in the world why there should not be such a disclosure. Certainly, since I became Minister for Transport and Power, I have made it a practice to answer questions in the Dáil relating to the internal administrations [739] under my aegis, and I look forward to the time we can fully implement the Devlin recommendations in regard to the supervision of the State-sponsored bodies by the Public Accounts Committee or by some other Committee, so that the chief executives of these various organisations can be as accountable to the Oireachtas or to an Oireachtas Committee in the same manner as the accounting officer of a Department of State is accountable. I have discussed this with some of the chief executives of the State-sponsored organisations and, contrary to the view traditionally held that they were trying to hide something, the best of them welcome the chance of coming here and explaining the position, explaining their policies before such an Oireachtas Committee. I think this is all for the good of democracy and political education generally in the country. However, this is not really relevant. I think I am responsible for broadening the debate a bit in this matter, but the fact is that the Minister for Transport and Power, with or without the consent of the Minister for Finance—and I feel it should be with his consent—cannot get the sort of brains required for this type of operation without paying for them. It is as straightforward as that.

Relative to what both Senator O'Higgins and Senator Owens had to say in regard to the nature of the removal from employment provision in subsection (4), perhaps Senator Owens's suggestion of incorporating a right of appeal to the Minister might meet the point of view expressed by both Senators. That might be a better way of doing it, by adding a subsection there providing for a right of appeal to the Minister.

Mr. O'Higgins: Information on Michael Joseph O'Higgins  Zoom on Michael Joseph O'Higgins  I think it would certainly meet it to some extent. However, I am worried about the position where a person is dismissed and does not know the reasons and cannot find the reasons. What is the point in appealing to the Minister if he cannot say I am dismissed for this reason— and it is a wrong reason?

Miss Owens: Information on Evelyn P Owens  Zoom on Evelyn P Owens  It would have to be included.

[740]Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  I will look into that and see if we can devise something. I see the sense of what has been said by both Senators and we can incorporate on Report Stage some provision there or in the following subsection to meet that point.

Question put and agreed to.

Question proposed: “That section 13 stand part of the Bill.”

Mr. Sheldon: Information on William Alexander Sheldon  Zoom on William Alexander Sheldon  I want to put to the Minister one small point. In considering what he will do about the inspection of premises I hope he will bear section 13 in mind because this gives the board power to have any of its functions performed through a servant. This would appear to me to indicate that a servant of the board could authorise another servant of the board to inspect premises.

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  It relates back to any possible amendments of the earlier sections.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  I should like to ask the Minister, when he is looking at section 13, to look back at section 10 and consider, in the light of the language of section 13, what I have said with regard to the board proposing to make any contracts. It seems quite clear that under section 13 the board can propose to make a contract with an officer or a servant. The proposal might be of such a general nature that the contract might not emerge to the knowledge of the board until a much later stage. I am still not happy about the words “proposing to make a contract”. Disclosure of the interest should only be necessary under section 10 when the members of the board—and not their officers or servants under section 13—propose to make the contract. I would ask the Minister to look at section 10 in the light of section 13.

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  I will do that.

Question put and agreed to.

Question proposed: “That section 14 stand part of the Bill.”

Professor Dooge: Information on James CI Dooge  Zoom on James CI Dooge  I should like to ask the Minister, in regard to section 14 and the question of superannuation schemes, whether this is broad enough to allow for the board, at its own wish, to introduce either a contributory or a non-contributory scheme. It seems to me that, as read here, the board is confined to a contributory scheme only. Even if the board consider that, in view of the particular market of potential employees, a non-contributory scheme was better, they would not be empowered to introduce a non-contributory scheme. What is the reason for this restriction?

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  Yes, the Senator is right in his interpretation. It is limited to a contributory scheme which is the usual provision in the case of all State-sponsored bodies. One could not envisage a scheme where there would be no contribution at all from employees of such an organisation. There would have to be some contribution.

Professor Dooge: Information on James CI Dooge  Zoom on James CI Dooge  But this does happen in some organisations from which persons might be drawn. It happens at the moment in the Civil Service. It happens in many of our academic institutions. In the absence of any scheme such as there is in Britain of the FSSU, where free transfer from one scheme to another is possible. If there is no way out of this and if it is necessary that it be confined to a contributory scheme, it should be a flexible scheme. It should be possible, in respect of a person coming in from outside, to make special arrangements whereby that person may be able to transfer from any scheme which is based on an insurance policy and that he would not be left in the position where it was necessary for him to be part of a contributory scheme of the type which rules in semi-State bodies and of this scheme only. There is a great need for flexibility here. I think the section may be drawn a little too tightly to allow for such flexibility.

[742]Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  On a reading of the section as a whole it is very flexible. Apart from the limitation to contributory, it does limit the percentage of contribution which could vary from 1 per cent to 50 per cent. The rest of the section is very flexibly phrased and will enable an arrangement to be made between a potential employee and the board in regard to the type of scheme and the conditions attached to it. In any such arrangement, of course, the degree of contribution would be a factor to be taken into account in the arrangement of salary between the potential employee and the board itself. Apart from the limitation with regard to “contributory” it is wide enough. The reason why we have “contributory” there is because that is the position with regard to all other State bodies. There is a contribution element in the superannuation and the percentage of contribution varies in every case. Consistent with the principle, which I mentioned earlier on, of the degree of consistency with regard to administration and statute obtaining with regard to all of these boards, I feel we should not make an exception in the case of this particular organisation with regard to superannuation.

Professor Dooge: Information on James CI Dooge  Zoom on James CI Dooge  I am inclined to agree with the Minister, provided one can interpret as different classes of persons, persons who before employment were in different types of superannuation schemes in their previous employment, that the section might prove flexible apart from the inbuilt difficulty that all schemes must be contributory.

There is a further point with regard to superannuation that I should like to raise. The success of this board, particularly in its early years, will depend on its ability to recruit staff. We are, in this country, rather disinclined to change jobs. There is in our employment, particularly the employment of skilled personnel, far too little mobility for the good of the country or, indeed, for the good of the individual. We have made some move towards overcoming that in allowing transfer of pension rights under the Superannuation and Pensions Act, 1963, and I would hope that Act will [743] be fully availed of in regard to the new Nuclear Energy Board.

In that regard I should like to ask the Minister if he would now be prepared to say, on the passage of the Bill, that all senior posts under the Nuclear Energy Board will be designated and that in fact it will be a designated organisation under the 1963 Act, so that from the very first day it would be clear that persons transferring from other bodies will be able to carry their pensionable service. I would ask that, at the very least, there would be immediate designation of all posts under the 1963 Act. I would also raise the general question—not for decision now but perhaps for discussion between the Minister and his colleagues—that as it is now ten years since the introduction of this code consideration might be given towards moving further along the road of mobility. Some Members will recall that, when the 1963 Act was introduced, it was introduced in a most tentative fashion. In practice the Act has been used to a greater extent than was envisaged when it was framed. Its success has been such that consideration might well be given to introducing permanent legislation which would do away with the necessity of designating different bodies or designating separate posts. If this step were taken it would greatly facilitate recruitment under this particular Bill.

At the very least I should like the Minister to express an intention of making the Nuclear Energy Board a designated body under the Superannuation and Pensions Act, 1963. Inability to transfer pension rights has been the great obstacle to the mobility of highly-trained personnel. It has been removed in respect of many jobs. There are others in which it could be removed and, in respect, of those in which it can be overcome, the procedure could, with advantage, be made less clumsy.

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  It is the proposal to make the Nuclear Energy Board a designated body for the purpose of the Superannuation Act, 1963. I can assure Senator Dooge that is the intention. The section is designed to ensure that intention can be carried out. I agree [744] with him also on the whole principle of mobility in regard to the transfer of pension rights. Again, the section is sufficiently widely drafted to enable that to be incorporated as well in regard to any such arrangement of bringing over pension rights into the new organisation from an existing organisation. I agree with the Senator on both these aspects.

Professor Dooge: Information on James CI Dooge  Zoom on James CI Dooge  We can take it then, that the first scheme made under subsection (1) of section 14 will include the clauses necessary for allowing it to take part in the scheme?

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  Yes.

Question put and agreed to.

Question proposed: “That section 15 stand part of the Bill.”

Miss Owens: Information on Evelyn P Owens  Zoom on Evelyn P Owens  On section 15, subsection (1) (c), I object to the inclusion of this clause in the Bill. It can mean that any number of years can be lost forever in calculating a pension. A similar type of clause was introduced into the Horse Industry Bill and the Opposition benches here raised it unsuccessfully with the Minister for Agriculture and Fisheries. It seems to be an innovation in legislation in the last few years. As I understand it, the situation which previously existed in regard to semi-State bodies was that if a person became a member of either House he had the option of paying the contributions himself, thereby preserving his pension rights under this scheme. As the scheme envisaged under this Bill is to be a contributory pension scheme I do not see any reason why we should now say that it is not possible to reckon any whole or any part of the period while serving in this House.

As we all know, the life of any Senator or Member of Dáil Éireann can be precarious. I am sure it has already happened that Members have served for six years or six years and nine months and have not qualified for an Oireachtas pension. If this scheme is to operate for an officer or a servant of the Nuclear Energy Board, there is no [745] way in which he could make up those six years again. This could mean, depending on the service and the type of scheme brought in, if it follows the normal type of superannuation scheme, he could be disqualified from earning his full pension if he enters the Nuclear Energy Board at an age when he could not make up the 40 years if six years are taken off because of membership of the Dáil or Seanad. This is very unfair, particularly when dealing with pension rights. I would go further and say that, depending on how long the person in question lived, it could happen that he would lose all his benefits under either scheme, that is if he were unfortunate enough to die at the wrong time.

Senator Dooge mentioned on the previous section that it is quite normal now for service to be transferred from one pension scheme to another. If it is not possible—and I contend that it still is—for an officer or servant to have the right to continue paying the superannuation contributions himself— thereby contributing to two pension funds, one for the House of the Oireachtas and one for the Nuclear Energy Authority—surely the overall service can be reckoned for pension purposes? I do not think it should be beyond the ability of the accounting staff in both organisations to make the financial adjustment. This happens quite regularly as between one local authority and another where there has been transferred service. I strongly object to this section because I think we may be perpetrating a great injustice.

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  I agree with Senator Miss Owens. It is the present statutory position in regard to other bodies in this field such as CIE and the air companies. I do not see why a person who becomes a Member of the Oireachtas should be prejudiced in this way. The option would be to pay the double contribution, to pay his or her own contribution and the contribution which the organisation would pay, so as to sustain the pension during the period of absence from the organisation. I will prepare an amendment along those lines between now and the Report Stage. This would not in any [746] way qualify a person to draw two pensions.

Professor Dooge: Information on James CI Dooge  Zoom on James CI Dooge  After two contributions?

Miss Owens: Information on Evelyn P Owens  Zoom on Evelyn P Owens  There is an argument to be made about not drawing two pensions. The two contributions would be quite large; it would work out at around 12 per cent overall, which is quite a substantial amount. Perhaps the second way of allowing the service in the House of the Oireachtas to be added on to the service would be a better way of dealing with it, because there is a contribution in the House of the Oireachtas as well. I do not know what contribution the Minister has in mind or what the board will bring in, but it is usually in the region of between 5 per cent and 7 per cent. I think it is 6½ per cent in the ESB and 5 per cent in the local authorities. That might be the better way to do it. I would be quite satisfied if the Minister has a look at it and brings in an amendment.

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  I certainly will.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  The Minister's attitude to this is most commendable. I was most impressed by the argument which Miss Owens made on this section and on the similar section in the Horse Industry Bill. The argument made by her then was not accepted. I want to make this point. The reason why, I am sure, the Minister for Agriculture and Fisheries did not accept it was because we were debating that measure when the Dáil adjourned or was about to adjourn, and the Minister could not accept it without going back to that House, which is one of the disagreeable features of being faced with a lot of legislation in the last week of July.

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  Point made.

Question put and agreed to.

Question proposed: “That section 16 stand part of the Bill.”

Professor Dooge: Information on James CI Dooge  Zoom on James CI Dooge  The point that arises on subsection (4) of section 16, [747] on which I should like clarification, is this. The subsection reads:

The acts of a committee appointed under this section shall be subject to confirmation by the board.

The query is whether in fact executive action can be taken as the result of a committee decision between the date of the committee meeting and the confirmation of the board. Or does it mean that all decisions of committees —this might well be important in the actual operation of this board—must be suspended until such time as the board meets and confirms the committee decision?

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  The powers of delegation are in the earlier subsections. It is true that decisions can be taken subject to confirmation by the board.

Professor Dooge: Information on James CI Dooge  Zoom on James CI Dooge  It does not quite say that and this is my worry.

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  I agree with the Senator there. The purpose of subsections (1), (2) and (3) is to delegate to the committee functions which in the opinion of the board, can better be performed by the committee. Then the composition of the committee is given in subsection (3) and then the acts of the committee who have been appointed to perform functions shall be confirmed by the board subsequently. I think it hangs together. I will have a look at it.

Professor Dooge: Information on James CI Dooge  Zoom on James CI Dooge  I think the Minister should have a look at it. There is the general point that there is a reflection here of one of the faults of delegation in practice. There is insufficient realisation that the delegation of power to make decisions should include delegation of the power to make mistakes, even if only in the short term. Delegation that does not include delegation of power to make mistakes in the short term is not worthy of the name of delegation at all. It is quite proper that a committee to which power is being delegated should report to the delegating body, so that they can perhaps overrule or perhaps make their intentions more clear to the committee to [748] whom they delegate. But to leave it in a position that the delegation is merely just the offloading of work and not the real dispersion of power is something that is not worth while and, indeed, something that this organisation would be better without.

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  The purpose is to give them the power to perform functions. The problem here would be if we did not have subsection (4) such decisions or acts by the committee might be regarded as ultra vires.

Professor Dooge: Information on James CI Dooge  Zoom on James CI Dooge  It would, perhaps, suffice, if, in fact, they were reported to the board or if as in the case of the Minister's own orders, anything done under him is not affected by subsequent annulment.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  Under subsection (3) the committee to be appointed here can consist—it is quite clearly expressed in the language of the subsection—of persons who are not members of the board, but who have delegated to them the functions of the board. There is no obligation on them, such as is on members of the board, to disclose interest under section 10. So you can have a board which should be getting a recommendation from a committee which consists of persons who are not members of the board, who are interested in the matter in hand, and who are making a contract subject to the confirmation of the board. The board may not be aware of the fact that this is coloured by an interested party.

Ruairí Brugha: Information on Ruairí Brugha  Zoom on Ruairí Brugha  I suppose it would be the responsibility of the board to ensure that this did not happen.

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  That is the answer. The board would appoint a committee and would surely have that view in mind in selecting the committee.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  Should the board not have statutory authority to require persons other than members to disclose interest?

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  The Senator cannot have it both ways. The Senator is being restrictive now.

[749]Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  The Minister encouragingly suggested that he would consider the points I made on section 10. I am suggesting that section 10—no doubt it will be improved —should apply as well to persons who are not members of the board but who are members of the committee.

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  We will have a look at it.

Question put and agreed to.

Section 17 agreed to.

Question proposed: “That section 18 stand part of the Bill.”

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  Would the Minister have a look at the existing provisions of the Finance Act, with regard to the avoidance of estate duty by gifts to the State, to see if that section would save a person who chose to make a donation, either inter vivos or by will, to this board?

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  It is a very good point. It is important that the board should be clearly exempted.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  Also a person who makes a gift, say, by will, leaving his wife a life interest—the last Finance Act amended that so as to free the gift both on his death and on the death of his wife.

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  We shall check on that to make sure that the board is included. If it is not, we will make sure that it is.

Question put and agreed to.

Sections 19 and 20 agreed to.

Question proposed: “That section 21 stand part of the Bill.”

Professor Dooge: Information on James CI Dooge  Zoom on James CI Dooge  In regard to the annual report, I am wondering what the Minister envisages as being the contents of the annual report? Does he anticipate that he will ask the board to make returns of all they have [750] done in regard to their regulatory and inspection duties, as well as in regard to such larger aspects as the question of nuclear power?

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  To be quite candid about this, I have not yet directed my mind to the precise nature of the annual report and the form that it will take. Under subsection (2) it is flexible enough, as the Seanad can see. That subsection gives the Minister power to direct what the annual report shall include with regard to information on any particular aspect of the board's proceedings, as the Minister may specify. It is broad enough to include whatever the Minister wants at a particular time. Has the Senator any particular view on it?

Professor Dooge: Information on James CI Dooge  Zoom on James CI Dooge  There is just one particular point that occurred to me. The Minister, in issuing instructions to the board in this regard, should not forget the very important public relations aspect of the problem. We talked about this on Second Stage: the fact that the public are perhaps predisposed against nuclear energy, against the use of radioactive substances, because of the connotations of nuclear war and its horrors. It might be as well if the Minister would urge the board, in making their report, that they should keep this fully in mind. For example, they might well include descriptions of the precautions that are being taken to an extent which purely for informational purposes for the Minister, or for those who would be directly interested, might seem tedious, repetitive, perhaps facile and hardly worth including in a report of this type. The report should be considered as being in part a report to the public. The Nuclear Energy Board should be very much concerned, not only in its report but in all its actions, with its public function, as well as with its economic and scientific decisions.

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  I agree fully with Senator Dooge. Certainly, that would be my own approach also.

Question put and agreed to.

Section 22 agreed to.

Question proposed: “That section 23 stand part of the Bill.”

Professor Dooge: Information on James CI Dooge  Zoom on James CI Dooge  This section ties up with sections 5 and 6. One can appreciate that for an offence under section 6 the board might prosecute. However, as I understand it, an offence under section 5 would be an offence against a code not prepared by the board to be regulated by itself; not prepared to be regulated by it as an agent of the Minister for Transport and Power, but in regard to advising, in regard to codes to be regulated and administered by other Departments of State or by other agencies. If this is so, then the intention is that the Nuclear Energy Board might act as a prosecutor in regard to a code on which they had given advice, but a code in respect of which they really have no statutory standing once it had given its advice, and the code has been promulgated.

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  That is the situation. Under subsection (1) (c) of section 5 the board can be requested by a Minister of State—any of the Ministers concerned with the field of nuclear activity—to act as agent for the Minister for the enforcement of safety regulations made by the particular Minister dealing with fissile or other radioactive substances or irradiating apparatus. That is the situation. Somebody must do it.

Professor Dooge: Information on James CI Dooge  Zoom on James CI Dooge  I could not agree more. I have been on earlier sections urging that it is appropriate that one body should prosecute, just as I think it is appropriate that there should be one regulatory body. But the Minister is taking the position that there should be more than one regulatory body, that the Minister for Health should still maintain inspectors and that the Minister for Labour should still maintain inspectors. Is it then appropriate that the Nuclear Energy Board or their officers should, in fact, initiate the prosecution? If it is the Minister for Health's regulations that are being breached, should not the prosecution be brought on his behalf.

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  I said on the last [752] occasion that I would hope we would move towards a situation where the sole agency concerned with this whole thing will be the Nuclear Energy Board. We are not interfering for the present with existing functions discharged by the Minister for Labour or the Minister for Health in this particular field. You have the administrative apparatus residing in both of these Government Departments at the moment concerned with this matter. You have officers there. You cannot overnight transfer them to the body that is very much in the embryo stage at the present time. When this body develops, I would envisage it absorbing the whole thing from the staff point of view and the administration point of view. Pending that, I would suggest that from the prosecution point of view, we can do that immediately, have them as the sole authority for that. It will be evidence of the fact that we propose, furthermore, to have them as the sole authority ultimately in regard to all staff and administration relating to nuclear matters.

Professor Dooge: Information on James CI Dooge  Zoom on James CI Dooge  The Minister is attempting to disarm me by saying that he is moving in the direction I wish him to go. I see a difficulty here. It may well be that what the Minister says will happen, that it is appropriate the board will initiate prosecutions under all the various regulatory codes. It may then become the custom that it is the Nuclear Energy Board which initiates all prosecutions. We now come round to the point: what happens when it has to prosecute itself? If it is responsible for the safe conduct of the importation of fuel it may do this on a direct basis and, indeed, it may find itself in a position somewhat reminiscent of some of our great Celtic art, a position of devouring its own tail in this particular respect.

I realise the section does say “may” but if in fact the intention is that they should be the main prosecuting agency, then, they may without realising it, issue a summons against themselves one fine day.

Ruairí Brugha: Information on Ruairí Brugha  Zoom on Ruairí Brugha  Could I refer to section 6. I think it was agreed in the [753] discussion that the inspectors would act as agents of the Minister. If that is the case, is it correct that it would be the board that would prosecute?

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  That is right. The board would prosecute in all these cases. I think I am meeting Senator Dooge's point by an amendment which I propose to bring in on Report Stage to section 5, and which I indicated on the last occasion I would bring in, that is to eliminate the word “responsibility” which is in section 5, subsection (2) (b) and (c). Where “responsibility for” is the wording at the moment, to substitute instead the phrase “the making of arrangements to ensure” and then continue with “the safe custody of fissile fuel” and “making arrangements to ensure safe operation of nuclear power.” That would eliminate the situation where the board would be in a position of prosecuting themselves for which they had responsibility.

Professor Dooge: Information on James CI Dooge  Zoom on James CI Dooge  Let us hope they are never prosecuted and never have to prosecute.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  I thought I was spent, but I am not. Section 6 creates an offence. This section provides for the liability of a person who is guilty of an offence. Section 5 creates no offence and there is no provision for liability if someone is convicted of the offence.

Professor Dooge: Information on James CI Dooge  Zoom on James CI Dooge  This point is again a reinforcement of this difficulty of a multiple code. As I take it, the penalties for the offences which would arise under orders provided for in section 5 are prescribed in the statutes to which section 5 refers. I think there may well be difficulties in the fact that we again have this idea of prosecution by the Nuclear Board for penalties that are in statutes which have nothing to do with the Nuclear Board.

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  That is, in effect, the situation: that the prosecution is envisaged. There are other than prosecutions under section 6 or prosecutions under other regulatory codes that exist at the moment, primarily, say, [754] under the Factories Acts and under the various Health Acts where there are specified offences and penalties laid down. This enables the Nuclear Energy Board to prosecute under these sections of these other codes in respect of nuclear radioactive offences.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  I am grateful to my colleague and the Minister for that information. But, just for my own understanding of it, is the position under section 5 (1) that the board will draft the regulations which will then be made by Ministers under existing statutes which themselves contain provisions for offences if the regulations are made? But, to take up Senator Dooge's point, would it not be a great help if we had all of this in this Bill?

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  That would be the idea. As I say, the reason why it has not been done is the pragmatic reason of getting this organisation going. First of all, it will have to grow and develop. If one were to automatically transfer existing functions, functions that are working admirably under the administrative apparatus of existing legislation with particular Departments and Ministers, I do not think it would be appropriate to transfer them until the “child” here has grown up, as it were. It is going to take some time to get this organisation properly going and at that stage, once it has proved itself and once it has developed its role, I would envisage legislation being introduced—this might take a few years— to absorb all the other functions concerning nuclear matters that now reside under statute with these other Departments.

Professor Dooge: Information on James CI Dooge  Zoom on James CI Dooge  We are on this section concerned with prosecutions and which has raised the question of penalties. When we were speaking on an earlier section, the Minister did indicate that he hoped the penalties in regard to all the various breaches which might be made under different codes would be the same. Since we had that discussion I have managed to take a look at the position and find that, in fact, if prosecution is taken under section 5 by bringing into play the Health Act, 1953, the penalty will be [755] quite different in some respects from the penalty under section 6.

The Health Act allows for a fine on summary conviction not exceeding £500, whereas in section 6 on summary conviction the fine may not exceed £100. Of course, on a conviction of indictment the fine is £500 and we have provision for imprisonment in the penalties under section 6, but no such provision under the Health Act code. I think it might well be that the Minister should take a look, possibly before Report Stage, at the penalties under the Health Act and the Factories Act. There may, indeed, be a case for amending those particular statutes to bring the penalties into line.

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  We are actually doing that. Since the last debate we have set that investigation in train.

Professor Dooge: Information on James CI Dooge  Zoom on James CI Dooge  This section deals with prosecutions. Are the Nuclear Energy Board to be empowered to seek injunctions against people or must they allow the offences to take place and then proceed under section 6?

Mr. B. Lenihan: Information on Patrick J. Lenihan  Zoom on Patrick J. Lenihan  They quite clearly have that right.

Question put and agreed to.

Sections 24 to 26, inclusive, agreed to.

Title agreed to.

Bill reported with amendments.

Report Stage ordered for Wednesday, 3rd March, 1970.


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