Wednesday, 16 June 1993
Seanad Éireann Debate
Minister for Enterprise and Employment (Mr. R. Quinn): I was explaining why this provision is here. It is not here simply because it has been practised over the years and it is not a legislative building block that is automatically put in by the parliamentary draftsman. There are very good reasons for its inclusion. The net point is that a Member of the Oireachtas, be it a Senator or a Deputy, would otherwise be able to be a member of a State agency and a Member of the Oireachtas simultaneously and that would cause inevitable conflicts. One could perhaps argue that our expertise in law making and in the evaluation of laws qualifies as simultaneously to be judges and law makers. There is something akin in contrasting and comparing the two because in the interpretation of the law, as ultimately the Supreme Court or even the High Court has to do, they could argue that they are Members of the Oireachtas, that they remembered a particular debate and they knew what was meant by the legislators when they were putting something through because they are still Members of the Oireachtas. There is a clear division of function and of responsibilities between the two. There are just over 220 Oireachtas Members. I know Senator Howard feels very strongly about this matter but we are not denying Deputies or Senators their political rights or opportunities  by asking them to forego this chance to become a member of a semi-State body. I genuinely believe there are real conflicts in interest.
For example, let us take the example of a person who is a member of the IDA, as it will be constituted, and where a proposal for an industry which is about to locate in a town the person happens to be from or which is located in his or her constituency, is brought before them. Perhaps the executive body of the IDA states that it has evaluated the project and does not propose to grant aid it because the costs are simply too high. That frequently happens and there are many projects which the IDA does not ultimately fund because the cost is too high or in some cases the cost has been gazumped either by Scottish, Welsh or French competing agencies. If a person is from a constituency in which an industry is to locate and it would be known that that was the preferred location of that industry, there is a potential conflict of interest. How does the person resolve the situation? Which is the superior loyalty? Is it to the elected members of the local authority of which he or she is a member or is it to the citizens of that constituency who chose to vote for him or her?
The competitive nature of the larger political parties is another example. A councillor who is not a Member of either House knows that a party colleague is on the IDA board by virtue of their membership of the Seanad or the Dáil. The councillor knows that a member could with their vote ensure that an industry is located in a area but the member chooses not to do so. That person is vulnerable to that kind of pressure. I used the example earlier of somebody who may have been appointed by the outgoing Administration as a member of the board of Aer Lingus. Where would that person be this evening in the context of answering questions in this House or explaining the position to their constituency if they were a Member for north county Dublin, Clare or Limerick? The person was appointed to a particular board by the Minister but he or she was elected to this  House or the other House and they would be torn in those directions. That is one aspect of the conflict. Another aspect of the conflict is, for example, a row between a Minister giving directions to a board to do something and a member of that board refusing to accept that and taking the row into the Dáil. This matter is fraught with all sorts of difficulty but I believe the pursuit of politics is an honourable profession. It is a vital profession in a democracy and people should be encouraged and respected for taking up politics. Politicians should be subject to full public scrutiny and we are in a way that very few other professions or groups are subject. Accountants and solicitors are not subject to that kind of scrutiny. Professors hold their positions for life, as do bishops. Politicians are in a position where we are open to scrutiny and we face the ballot box on average every three or four years. Therefore, having put ourselves in that position we should not downgrade ourselves. In the past we have allowed ourselves to be denigrated by a minority of people in different parties who were elected. It is not a party political matter.
On the broad principle, it is not just a mindless inclusion of a provision or putting it in because that is the way boards are constituted. There are very sound reasons as to why it is not the case. Why is it that I am allowing members of the local authority to be on the board of the county enterprise partnership boards?
First, the relationship between members of a county council and the executive, i.e. the manager, is totally different from that of a Member of the Oireachtas and the Executive. One must be a Member of either House to be a member of the Government whereas, by definition, a county manager cannot. Secondly, territorial constituency conflict does not exist. In a county enterprise partnership board, all members are equally committed to the county and it is not big enough to have the constituency rivalries one may have, for example, between Shannon and Dublin or Cork and Waterford, in terms of a location or  venue for an industry preference. Thirdly, county councillors have a positive role to play in local enterprise boards and this is one of the reasons that convinced me I should change the original proposal that the ex officio chairperson automatically becomes a member. Councillors at local level work on a part-time basis and have a wider spread of interest and involvement than is the case here and are closer to the action on the ground.
I worked in the housing architects' department of Dublin Corporation for nearly three years and served on the local authority as an elected member. I am a great admirer of the local authority system with one caveat — there is no commitment to job creation or employment in it. Therefore, my deliberate intent in broadening the participation from one up to four of 12, as distinct from one out of approximately 18, was to give local authority and elected members a sense of responsibility, so that they would consider every decision coming before them, whether it is the purchase of an incinerator essential for the disposal of industrial waste, which will have to be dealt with in the next three to four years, or looking at every planning application from the point of view of not only how it impacts on the environment and tourism but on employment. Responsibility for employment at local level among councillors has never been part of their agenda and by having this number of members on the local authority, in as broad a political representation as possible, their consciousness of the need to preserve existing jobs and to create new ones will be enhanced.
I have taken some time to explain this because I know it is not the first time Senator Howard raised it — Senator Taylor-Quinn also expressed her concerns about it last night. The embargo is not a slight on politicians; they would be put in an impossible position if they were members of State boards, they would be forced to choose and would ultimately take the easier option of going against those who did not elect them to be reelected by those who did.
Mr. Howard: I acknowledge the Minister's response, he is the first Minister I can recall who has gone to reasonable lengths in putting the other side of the argument. The usual response was to tell the House that this was standard practice which would be retained.
I do not fully accept the Minister's arguments. For example, I know that in Germany — I cannot speak for other EC countries — there is no embargo on politicians serving on State boards. I have met politicians there who are members of state boards and chambers of commerce and involved in the business sector. With regard to the Minister's point about politicians being put under considerable pressure because they may have to make a decision on matters in their constituencies, there is a provision in the Bill for a declaration of interests which could also be adjusted to take account of constituency pressures, where they may arise. I do not think it is constitutionally right — even though politicians are involved — to disqualify a group of people from fulfilling any other role on  behalf of the State. I do not know if anyone will challenge this constitutionally, but it is wrong not to allow politicians to sit on State boards.
Whatever the argument for this disqualification — I do not accept it in relation to Members of the Oireachtas — including members of local authorities is stretching it too far because it does not apply to them in regard to State boards in other legislation that has gone through this House. As a member of these boards they would not be subjected to greater pressure than they would under the local enterprise teams. I have had a lengthy association with politics and politicians on all sides, here and in council chambers, and their level of integrity is higher than that of many others in society. The Minister's fears are ill-founded, but I acknowledge and appreciate the lengths to which he went in arguing the case and that he did not give me the standard glib response.
|Belton, Louis J.
Cregan, Denis (Dino).
Enright, Thomas W.
|Farrelly, John V.
 Question declared carried.
Amendment declared lost.
Amendment No. 20 not moved.
An Cathaoirleach: For the information of the House, Senator Taylor-Quinn's name should appear on amendment No. 21. This has been discussed with amendment No. 19.
Amendment No. 21 not moved.
Mr. Dardis: Is it possible to refer to a provision in a section which is not the subject of an amendment?
An Cathaoirleach: When we dispose of the amendments you can speak on the section.
Mr. Dardis: I wish to speak on the First Schedule.
An Cathaoirleach: You can speak on the First Schedule when amendment No. 25 has been disposed of.
Mr. Dardis: But amendment No. 20——
An Cathaoirleach: Amendment No. 20 was discussed with amendment No. 17. We are now about to discuss, Government amendment No. 21a.
Mr. Dardis: When we get to amendment No. 22 we will have dealt with the part of the Schedule about which I wish to speak.
An Cathaoirleach: You can speak on the Schedule but not now.
Government amendment No. 21a:
In page 9, paragraph 7 (1), lines 29 and 30, to delete “as soon as may be” and substitute “not later than six months”.
Mr. R. Quinn: The purpose of this amendment is essentially to meet the  spirit of the suggestions made earlier and to have the annual reports produced within six months, not three months as suggested.
Mr. Farrelly: Amendment No. 21 was in my name and I presume the Government's amendment is an amendment to it.
Acting Chairman (Mr. R. Kiely): We are discussing amendment No. 21a, a Government amendment.
Mr. Farrelly: I requested and support the publication of the annual report within three months of the end of the financial year to which it refers. Three months is a reasonable period, if we left it open-ended there would be no urgency in publishing the report. The Minister is asking us to accept an amendment providing for a time limit of six months. However, I will not force a division on this issue.
Mr. R. Quinn: Procedurally we should probably take amendment No. 21a in conjunction with amendment Nos. 22 and 23. We examined this issue when the Committee Stage amendments were being tabled. The problem with early publication of annual reports in not the unwillingness of either the Department or the agencies to produce them but the constraints on the Comptroller and Auditor General in regard to verifying and certifying the accounts. The alternative is to hire expensive accountants which I do not want to do. There have been totally unacceptable delays in the publication of annual reports in the past. A legislative sword of Damocles hanging over agencies would compel them to publish their reports within the specified time, they will then get priority in the Office of the Comptroller and Auditor General. I am advised that six months is a realistic period at which we can reasonably aim, not three months as proposed by Senator Quinn and Senator Farrelly. That is as far as I can go.
Mr. F. Quinn: I did not realise this is  a Government amendment. It goes a long way towards accepting the spirit of what I was hoping to achieve. However, I have one problem with this issue and I want to confirm that my view is correct. One of my criticisms of State companies is that they have often issued reports to their own Departments who often delayed publication. I wish to clarify that we are talking about the onus being on the organisation to publish the report within six months. May I confirm that it is the publication that is intended, not just reporting to the Department?
Mr. R. Quinn: I accept the Senator's point, that is certainly my intention, we can examine on Report Stage how this can be achieved. Although I know what we are legislating for the future and that practices may very well alter, the practice of the current administration and of previous administrations, as far as I recall from my experience of them, is that when a Department receives a report a summary of it is prepared by way of aide memoire which is brought to the Government in the normal time period, this process takes a week or a fortnight. Such reports are generally accepted by the Cabinet, I can only recall one instance where we were unhappy with the inadequacy of one report and we conveyed this in the critique we prepared of the aide memoire from the Department. We cannot change the annual report of a body but we criticise inadequate editing that has been brought forward to the aide memoire from the sponsoring Department. The reports themselves are published unchanged. It is normal that there are two or three annual reports on the agenda of almost every meeting of the Government. My intention is that reports would be published and laid before this House within six months, on Report Stage we can spell out how this can be made explicit.
Amendment agreed to.
Amendment Nos. 22 and 23 not moved.
Acting Chairman: Before I call Senator Lee, I wish to point out a typing error in amendment No. 24. “Every” should have a capital E and there should be a full stop after “losses”.
Professor Lee: I move amendment No. 24:
In page 9, paragraph 7 (1), line 32, after “Oireachtas” to insert “every such annual report shall specifically comment on both job creation and job losses”.
I am new to the procedures of the House. I am grateful that the Minister accepted the principle of this amendment earlier. My amendment still remains, although in a much weaker form, compared with my original amendment. However, this amendment, if accepted, would be the only reference in the Bill to any criterion of the evaluation of performance. My amendments states that job creation and job losses should be commented on. I would have put in stronger phraseology if I had realised the way things would work out, but I meant it to be equated with “analyse” in a significant rather than a stylistic way. It is intended to focus the attention of the agencies on net job creation as at least one major criterion, if not the only one, by which their performance should be evaluated. That is the spirit in which this amendment is intended and I hope the spirit in which it will be interpreted when it is implemented.
I was reassured to hear the Minister say there will be annual reports from the Department, which will at least refer to some of the matters arising here. Ongoing evaluation of what is happening must be built into this process; to allow things to continue for three years would permit an accumulation of developments which would almost inevitably lead to a defensive posture about what happened. It is much easier to adjust along the line if there is some evaluation even if not as detailed as that intended at three year intervals.
I presume the phrase on page 9 in line 28: “shall submit, in such form as the  Minister may direct” is standard. I would like the Minister, although not necessarily today, to ponder carefully what form he may direct, because there are problems confronting the drafters of the annual reports of these agencies. It was mentioned earlier that Forfás will be detached from Forbairt and the IDA. Is that realistic? It will be very difficult for reports that are not effectively synchronised to emerge from these agencies.
If we look at the functions of Forfás, Forbairt and the IDA there is certainly an overlap between Forfás and the IDA: both are to encourage the development of industry and technology in the State, etc. The expectation of two different emphases in the reports from these agencies given the close personal relationship that will inevitably exist between them is asking more than can be delivered.
All the functions of Forfás are really advisory, whereas the others can focus on what they have done in terms of making investments and providing support which are at the core of their activity. How will Forfás provide a report on advising and encouraging which contributes to understanding what is going on?
Much thought must go into the form, format and orientation of the Forfás report if it is to add significantly to those of the other two. If there is to be regular evaluation these reports must have some bite. If they are fluff they will inevitably lead to suspicion about the adequacy of the agencies' work and that suspicion will effect the Department to a much greater extent than previously when they were perceived as detached. It is putting it far too dramatically to say that the Minister's reputation is at stake but I believe the manner in which these reports must be presented is an integral part of the process and not simply a formality.
Mr. R. Quinn: I accept the thrust of what the Seantor said. I imagine for the first year or so the reports will be dominated by commentary as distinct from the factual reportage of the normal matters that are statutorily required. They will be dominated by the process of establishing  the three bodies as that will be high on their agendas.
The value of reports — sine they are required to be laid before the Houses of the Oireachtas — should be to inform the Oireachtas, in a beneficial way, of what they have learned while spending moneys allocated to them by the Oireachtas — the closing of the loop. I have no immediate answers to the Senator's queries other than saying he is concerned in saying that we can prescribe the format. The format should be set out wisely, because there is no point in wasting precious time writing material of little or no value.
The Senator questioned what Forfás, as distinct from the other two bodies, will write about. To start at the coalface the other two bodies will describe in the commentary side of their reports their experiences in trying to implement policy in relation to attracting inward investment, promoting new industry or consolidating indigenous industry. Forfás will, among other things, have to talk about the policy initiatives it looked at, the new areas it started to examine, the research it may have commissioned and the reasons for deciding to go in a particular direction.
A legitimate matter for concern would be any exploration of a new vein of wealth and job creation and coming to certain conclusions. A specific example to which we referred earlier is the enormous potential for this country to become the prime centre for telemarketing in a single integrated European market. We are ahead of everybody else and, as with many ideas, we partly analysed it and partly stumbled upon it. The IDA is now actively investigating that process and the cost infrastructure required. A massive reduction in the cost of 1800 number calls into Ireland was a deliberate link to secure our objective.
The IDA cannot attract that volume of work until the cost structure for 1800 numbers is put in place, but it would never have been able to convince Telecom Éireann to change the cost structure without showing it the substantial market within the integrated EC. I see the report process evolving in a similar way, but  I am thinking aloud rather than giving specific undertakings to the Senator.
I repeat that it is my intention that the new Department of Enterprise and Employment will produce an annual report. I hope — and I stress the word “hope”— that it will be published close to the completion of the Department's first 12 months.
Amendment agreed to.
Acting Chairman: Amendment No. 25 is out of order because it is a potential charge on Revenue.
Amendment No. 25 not moved.
Question proposed: “That the First Schedule, as amended, be the First Schedule to the Bill.”
Mr. F. Quinn: Amendment No. 25 is vitally important. I am disappointed that it is out of order because of a tiny cost constraint. I proposed a similar amendment to the Roads Bill, 1991, recently and it was accepted in principle.
The principle behind amendment No. 25 was that right around the world in private enterprise, public stock exchange companies, it is no longer acceptable to report solely on the finances of the past year. A company is also expected to report on how well it has done its job; to provide a quality audit on how it has performed. I am not suggesting that this is required every year, but it is in the State's interest to set a standard, it is not sufficient to just balance the books if the service is poor. It is, therefore, disappointing that the amendment was ruled out of order. I am confident, however, the Minister will take into account the spirit of what is required. I believe that in years to come we will look back and ask if there was a time when there were not quality audits alongside financial audits. I would suggest one every three years as a first step but I believe that in years to come it will not be acceptable to only have financial audits. To measure any organisation solely on finance will  no longer guarantee the survival of that organisation.
Mr. Magner: I wish to refer briefly to what Senator Quinn said. There is much more merit in his proposal than at first sight. One of the problems we have faced over the years is that financial reports per se are capable of a varity of things. Money being invested can appear to be extremely reasonable. It strikes me, having had a briefing from Deputy Cowen on Aer Lingus, that their financial reports over the last five or six years should have shown a horrific picture but it looked fine on paper. If we had had quality reports we would have sacked people at the top a long time ago. There is a great deal of merit in Senator Quinn's suggestion.
The prohibition on accepting an amendment because it has a cost implication should be examined. If something has a minor cost and a major benefit why should it be automatically ruled out? That is something which should be examined in the long term.
Mr. R. Quinn: I am still learning procedure. I have yet to meet anybody who has learnt all they need to know in this area. The Bills Office decides whether an amendment is in order; it is not a matter for the sponsoring Minister.
I accept the thrust of what Senator Quinn is saying on two fronts, the concepts of an energy audit is being brought into the operation of companies — it is cost related but it is ultimately quality related — and we have the concept of an environmental impact assessment which is essentially broadening the narrow financial base. I have said in public, and I will put on the record of this House, that after presenting my third or fourth ISO 9000 award, I began to wonder why we could not start presenting them to Departments or, more to the point why Departments could not earn them.
I have another idea — would it not be lovely to present an ISO 9000 award to the maintenance department of Dublin Corporation? This is an area which has caused a great deal of frustration for  locked in, no choice customers who are not allowed go anywhere else because of a structure of decision making, from the top right down to the shop floor, and where quality and quality of service are the last things that come to mind. By fortuitous coincidence, within Eolas there is the National Standards Authority of Ireland which has responsibility for, in part, ISO 9000 awards and I am more than open to the concept, not because it seems to be a gimmicky idea but because of the evidence.
I am currently trying to read the strategic business plan for the year 2010 for the Republic of Singapore where they identify that quality and the provision of quality in services will be a key competitive factor in what will be a global market by that time, if not sooner. This State is going to have to trade on quality as the Swiss, for example have learned over many years. The Oireachtas and people who are accountable in it have to start with our own public authorities. We all know — certainly any of us who know Dublin's local authorities — that the quality of service leaves much to be desired.
We see the integrity of our public service as if it was the norm when right across Europe it is not the norm. Since the foundation of the State we have been blessed with a non-corrupt public service, with very few exceptions. One could count the exceptions on the fingers of one hand, unlike what we have seen across the water where there have been single party dominated councils over years and one does not have to go very far in any direction to find that presumption of normality is simply not there. However, we pay the price for that, and the price is an obsessive concern with the accuracy of figures and a total disregard for the quality of the service. I would be anxious that in improving the quality of the service we would not lose the commitment at central and local authority levels to integrity in professional terms. We have been well served in that respect but we do need to move on to the question of quality.
On a much broader level, I will be trying to introduce the idea of an ISO  9000 standard for quality of service. There are many ways one could measure it. How long, for example, does it take to reply to inquiries from the public? How accurate is the information? If we take it that the citizen is the customer, we can begin to measure quality in that way.
Acting Chairman: Not to be in conflict with the Minister but I understand that, in accordance with Standing Orders, it is the Cathaoirleach who rules out amendments.
Mr. R. Quinn: I said I was still learning.
Mr. Dardis: I want to draw the Minister's attention to something I think could potentially cause problems. It is a drafting matter he might look at between now and when the debate on the Bill is taken in the Dáil. In the First Schedule, paragraph 4 (1) it says “The Minister may, with the consent of the Minister for Finance, remove a Board member from office”. I am sure the Minister is aware that in the preceding paragraphs the Bill mentions “each Board” and that in paragraph 5 (1) “Forfás and each Agency” is mentioned. There is a potential for confusion here where “a Board” is mentioned and in paragraph 4 (3) “the Board” is mentioned. I take that to mean any of the three boards and that the Minister could remove a member from not just one of the boards, but all three. It is possible that one could get into a legal quagmire as to which board was involved. It is a small point but it could be significant. It is not something of which I want to make a major issue but it should be examined.
May I mention the words “in relation to” in that paragraph 4 (4)? The Minister is to be commended for the fact that there is a marked improvement in this legislation compared to the other legislation to which we referred as they were going through the House. I can only find two places where “in relation to” is used in this Bill — on page 4 and in this Schedule.
Mr. Farrelly: They will never mention “in relation to” again.
Mr. Dardis: The Minister was very good in his Second Stage address but there was an unfortunate lapse this evening when his colleague, the Minister for Equality and Law Reform, in the first sentence——
Acting Chairman: I would not want to stress “in relation to” but they must be heeding your contributions in the House.
Mr. Dardis: I will be unremitting in my attempt to improve the language in the House.
Mr. R. Quinn: In the definition on page 3, “‘Board’ means the Board of Forfás or either Agency”, that is the first point of reference that would be made in relation to any dispute. It is all embracing.
Question put and agreed to.
Mr. F. Quinn: I move amendment No. 26:
In page 10, between lines 20 and 21, to insert the following sub-paragraph:
“(2) Provided that it makes all such appointments either by public open competition or by open competition within Forfás and the Agencies, and provided further that it does not in making any appointment discriminate between candidates on the basis of their age, sex, martial status or sexual orientation.”.
The purpose of the amendment is to signal the obvious. State bodies should be examplars as equal opportunity employers. As drafted, it seems that the boards can do whatever they like when employing people. The intention was presumably to establish the bodies' independence in making their appointments. However, in this day and age, I believe  it is up to Government agencies to meet a proviso such as the one I am proposing to remind State bodies that they should give a lead in the matter of equal opportunities. It is not just a matter of conforming to any general law of the land. Some State bodies such as Aer Rianta are already leaders in this field. We should bring all State bodies up to the same level as that of Aer Rianta. If they are seen to give this lead the rest of the country will follow.
Mr. Farrelly: I would like to support the amendment. I believe there is an opportunity here to lead by example. I recommend that the Minister would take this amendment on board.
Mr. R. Quinn: I have no problem with the sense of this amendment and I commend the Senator for highlighting it. However, I wish to say that I am not accepting it for the following reasonable reason which is similar to the reference to the terms and conditions of appointments being agreed by the Minister for Finance. The Employment Equality Act, 1977, prohibits discrimination, including at recruitment, on the grounds of sex or marital status. It does not cover sexual orientation but we have all moved on since then.
Legislation is being brought in by my colleague, the Minister for Law Reform and Equality, to cover that point which will apply to every board and area with the same degree of force and clarity. It is a question of doing it once as an intervention which goes right across the system. The danger of doing it in this manner is that the wording and the interpretation could be slightly different and could lead to different interpretations. It is not to say that we do not accept the sense of what is involved but we are going to do it in a different way which will have the same legislative effect.
Mr. O'Toole: Senator Quinn had the legislation on employment equality amended to include age, and the Minister has brought in the question of sexual orientation, so those points are covered.  It is important to note from an equality point of view that the recommendation from the Equal Opportunities Commission in Northern Ireland, and I think from the Employment Equality Agency here in the South which is being examined by the Department of Equality and Law Reform, is that boards, industries, companies and State agencies should adopt and publish an equality statement. This would be part of the operation of an organisation and would apply to all levels of appointment. This should be encouraged by the Government; it is developing in other European countries and in the North of Ireland where equality has been an issue for a long time.
The issues raised here are critically important and perhaps they could be dealt with by encouraging the agency to publish an equality statement covering those areas. There is no doubt that such progressive measures must be implemented in one form or another, if not in the legislation then in a statement of equality by the company or agency.
Mr. Sherlock: This is an important amendment. The Minister in his reply said that while he accepts the principle of the amendment the matter was being dealt with by other legislation. I suggest that an important part of this amendment which says that such appointments should be made by: “public open competition or by open competition within Forfás” is not dealt with in other legislation. Consequently, this amendment should be taken on board.
Mr. R. Quinn: My Department, because it is now the Department of Enterprise and Employment, has responsibility in this area. While the equality legislation will be brought in by the Minister for Equality and Law Reform, Deputy Taylor, I have no problems — because I can give directives in writing to the board — with requiring as a policy that they would meet the points raised by Senator O'Toole. All permanent appointments, and also many of the contracts through the agencies, are made on the basis of open competition,  which is the policy. The two chief executives of the two boards will be appointed by open competition or by competition from those people currently employed by the company. Therefore, Senator Sherlock's point has been covered.
Mrs. Taylor-Quinn: I accept what the Minister says in relation to the latter part of this amendment, that it is all included in the Employment Equality Act, 1977, except for the part dealing with sexual orientation which will be dealt with in forthcoming legislation by the Minister, Deputy Taylor. I suggest to the Minister that the first part of the amendment, which refers to open competition, provides a real opportunity to put this into legislation. I think the Minister should at least consider accepting the first part of the amendment as far as the word “agencies”.
There is a danger that not accepting it will be interpreted as another case of jobs for the boys and that lads, or ladies as the case may be, can be thrown into jobs without going through the necessary interview system and open competition which should apply to all State and semi-State jobs. It would be extremely unfortunate if it was so interpreted. I appeal to the Minister at least to consider the first part of the amendment.
Mr. Magner: I think the Senator should keep a general balance by referring to jobs for the girls as well.
Mrs. Taylor-Quinn: I said “or ladies as the case may be”.
Mr. R. Quinn: The Senator also said that it should apply to all semi-State bodies and agencies. We are just dealing with one cluster and if a good trade unionist saw that legislation had been altered in respect to one area he or she would not be slow to exploit that and have it applied to all the other semi-State bodies. It is better to deal with this in the reforms of the employment equality legislation. The points which have been made here will be taken on board.
Mrs. Taylor-Quinn: Would it not be nice to be the Minister who was ahead of the rest?
Mr. Sherlock: May I ask the Minister what relationship will exist, and I know he has covered this ground before, between Forfás and An Bord Tráchtála with regard to personnel, reporting, communications and so on? What is the structure in that regard?
Mr. R. Quinn: At structural level, the chief executive of An Bord Tráchtála will be an ex officio member of the board of Forfás. At local level, at present members of ABT and the IDA share accommodation in some, but not all, of the locations around the country. We would like to encourage such integration so that it will be a one-stop-shop in the sense that a person can deal with people in relation to developing a product, receiving financial assistance for an industry and marketing in the one building, instead of having to go to different towns in a region or different offices in the same town. That is a management policy arrangement and we will attempt to have people working together.
I accept that Senator Sherlock had to be elsewhere but earlier in response to a question posed by Senator Farrelly we discussed the concept of Ireland House abroad, where different agencies ranging from Bord Fáilte, ABT and currently the IDA, are housed under the same roof, share information and support each other. I will try and ensure that will happen on an informal basis, because it will not be structured. Hence the reference to the obligation of Forfás to coordinate the activities of the various bodies. That is the kind of co-ordination which we have in mind.
Amendment, by leave, withdrawn.
Mrs. Taylor-Quinn: I move amendment No. 26a:
In page 11, lines 14 to 16, to delete paragraph 4 (1).
This amendment proposes to delete paragraph  4 (1), lines 14 to 16 on page 11, which states that:
Forfás and either Agency shall not, without the consent of the Minister, disclose any document in its custody or under its control, production of which is sought in relation to any legal proceedings.
I tabled this amendment because I am extremely concerned that putting this into legislation would be seen as an attempt to thwart the course of justice, particularly preventing the disclosure of documents in relation to legal proceedings. Given the current climate where we have a tribunal and where cases have been taken to the Supreme Court to secure documentation, it would be most unfortunate if this House allowed such a section to go through in this Bill. It would be most unwise and nobody, whether it is a Minister or anybody else, should be exempt from the full rigours of the courts. While the Minister currently has certain privileges and is exempt in certain circumstances, the Bill should not convey that privilege to a semi-State agency and remove responsibilities from the chairman, chief executive and members of the board. Legislation that would transfer that responsibility to the Minister would be extremely unwise.
I urge the Minister to accept the amendment. It is in the interest of justice and in the interest of the Minister and his Department to ensure that justice is seen to be done equally and that there are no exemptions.
Mr. Farrelly: I support the amendment. It must be a new departure to include such a proposal in legislation. As a result of this proposal the Minister of the day is entitled to withhold whatever information he or she may wish in the event of a legal investigation or inquiry. If this legislation is passed the inquiry would thus be pointless as the information required to arrive at a final decision could be withheld. That is not open government or the way forward. With hindsight an amendment to remove paragraph 4 should also have been proposed.  If this Bill is passed the Minister of the day in any Department may refuse to give information during an investigation thus rendering the investigation useless.
Mr. O'Toole: I do not interpret the section in the same way as Senator Taylor-Quinn and Senator Farrelly. I would like the Minister to make the interpretation clear.
My understanding of that paragraph is that somebody involved in court proceedings who seeks information can be denied that information. I presume such documentation would be subject to discovery by the courts like any other document. The Minister should control documentation within the agencies. In my own role as chief executive, people often seek documentation in order to proceed with court actions. I have a rule for such instances: I never make documents available until there is a court order to do so. Our litigious society encourages that approach.
I would support Senator Taylor-Quinn's view if the paragraph means that the Government could keep documentation and the courts could not seek discovery. If that is its intention, I would consider it a negative provision. My understanding is that it simply makes the Minister the person with the authority to disclose documents and in court proceedings the Minister would be the named person to whom discovery of documentation would be directed. If it meant anything else I would be worried.
Mr. R. Quinn: This provision was in the 1969 and 1986 legislation. It is not a standard provision although it has been there for a long time. Its intent is as Senator O'Toole described it. The board of the agency is ultimately responsible to the Minister and the Minister is responsible to this House. If documents are sought for legal purposes — and legal purposes are referred to specifically — the Minister ultimately decides whether to comply with the request from the court for documentation. If the Minister chooses not to comply, and this is subject  to correction, the court may direct that the documents be released. I suspect that by that time there would be a special notice question on the floor of the other House, if not a motion on the Adjournment here, and Members could question the Minister why a decision was made to refuse to release information.
That provision is there to protect various people. It ensures accountability by indicating a line of command in which the Minister ultimately takes the responsibility and is accountable to this House and maybe directly to the court. We are all subject to the law. I cannot accept the amendment.
Mr. O'Toole: I am happy with that explanation. I urge Senator Taylor-Quinn to understand that this is a protection. The Minister, as the political head, is accountable. Without that provision we could have the unacceptable situation where the board of an agency might refuse to make documentation available and would not be accountable for the decision. I would have supported Senator Taylor-Quinn if the Minister's explanation had been different.
Mrs. Taylor-Quinn: I am not happy with the explanation because, as the Minister said, this is not a standard provision. It is included in previous legislation but it is not in all legislation. All Ministers do not have this provision written into legislation. I am concerned that the Minister believes it must be included. He said that if the court directs that documents be released the Minister may decide if he will release them. This section gives the Minister an immunity from the courts which is not necessarily in the best interest of justice.
We have seen examples of this within the past year in relation to the beef tribunal. The Minister must appreciate this as his party sought the establishment of the tribunal. I am sure he will agree it is important that every piece of documentation that can be provided should be provided. This section would hinder any investigation because in the course of court procedures another case can be  taken by the Minister, as a delaying tactic, to seek affirmation of protection under this section. If the provision is not standard, why include it? I see no reason for it.
Mr. R. Quinn: I am not convinced by Senator Taylor-Quinn's argument. The provision derives from existing IDA legislation. The IDA is engaged in transactions, many of which could be the subject of litigation, for example, people may go to court about the buying and selling of land. In this area, where there may be demands for the disclosure of documents, it is a protection for the board. The Minister is immediately accountable in either House of the Oireachtas if he or she refuses to release this documentation. If this protection is removed from the board, Senators cannot raise the matter on the Adjournment because the Minister would not be accountable in this area; it would be the responsibility of the board. I have been the victim of this lack of accountability on occasion and I have at times hidden behind it in that I have been able to say the matter was the function of the semi-State body.
This provision is very clear. This is documentation sought for legal purposes. Where there is a request to make documentation available the board in question can only do so at the request of the Minister. Most boards would be delighted to send that request to the Minister, and most Ministers would immediately comply with that request. If the Minister did not, he or she would immediately have to explain why the documents would not be released.
The Senator's argument has not convinced me. The democratic responsibility is very clear. Every Member of this House can publicly question the action of a Minister who has refused to make documents of this nature available.
Mr. Dardis: This provision is a two-edged sword. I partly agree with what the Minister is saying but if a tribunal of investigation into matters relating to the  activities of these boards sought a document from the Minister, is the Minister under a legal obligation to produce that document or could he or she refuse?
I accept the Minister's argument that members of local authorities and Members of the Oireachtas should not be on the boards of these agencies because of a potential conflict of interest. The Minister could equally be subjected to the same sort of pressure. How can he reassure us that those pressures will not impinge upon the decisions provided for in these two paragraphs?
Mr. Farrelly: Will the Minister inform us, since these two paragraphs were introduced as part of the legislation in 1969, if any such case been brought before the Minister of the day requesting information under the headings as stated, and did the Minister of the day ever refuse?
Mr. Magner: Every day of the week orders for discovery are made in company liquidations and in fraud cases and the question always asked is, who has responsibility? This provision apportions responsibility very clearly. The order for discovery is easily given, but the actual discovery of the documents is a different matter. In this case the responsibility lies with the Minister and that is where it should be.
Mr. O'Toole: We have strayed into an area not covered by the Bill and which is not within the competence of this legislation or of the Department. The answer to the question of whether the Minister can refuse information sought by a tribunal is very simple. It depends on the powers vested in that tribunal by the authority which establishes it. There was a classic example of this six months ago when the beef tribunal sought discovery of documentation of Cabinet proceedings. The Government decided that to breach Cabinet confidentiality would be a breach of the Constitution and the Supreme Court was asked to decide on this. The Minister cannot answer that question tonight. It is unanswerable.
I feel as responsible for this legislation  as anybody else here. I want the political head to be answerable in this situation. I have consistently said it is important that the Minister, rather than the board, should have that power. I do not want the board to hold documentation or to be responsible for disclosure or otherwise of documentation. I want the elected political head of the Department to be accountable. I see this as protection. The political responsibility lies at the top of the tree.
Mrs. Taylor-Quinn: The whole question of accountability to these Houses has been referred to here. Unfortunately, matters are often raised on the Adjournment in these Houses where, for various reasons, the Minister gives half baked answers or no answer at all. The level of accountability is negligible in many instances and, for that reason, all Members must question what the Minister says. Perhaps the Minister is prepared while he is Minister to give us full detailed and accurate accounts, but he is fully aware of how he is often unable to give full details to the House. I would like some reassurance from the Minister in this regard.
Amendment, by leave, withdrawn.
An Cathaoirleach: Amendments Nos. 27 and 29 are related and my be discussed together.
Mr. O'Toole: I move amendment No. 27:
In page 11, paragraph 4 (2), line 17, to delete “his” and substitute “to”.
In the section providing for the employment of staff, where a person is seconded from the staff and being elected to——
An Cathaoirleach: We will deal with that on the Second Schedule.
Mr. O'Toole: I have no problem with that, a Chathaorligh. This legislation is the best legislation I have seen in that there is no discrimination on the grounds  of gender. I will discuss two small points in the Schedule.
The proposal in both cases is to get rid of sexist language of “his” and “him” as it is unnecessary. I concede, because the parliamentary draftsman cannot defend himself in the House, that I have made an appalling error in the second amendment in that I have taken the verb out of the sentence. Amendment No. 29 does not stand up to scrutiny and must be redrafted slightly differently. At present it reads “where the Minister refuses his consent to the disclosure”. I want that to read “where the Minister refuses to consent to the disclosure”. My proposed amendment is straightforward, and has exactly the same meaning.
In amendment No. 29, the text reads “subject to paragraph 3, a person shall not disclose any information obtained by him”, and I propose that this be replaced with “subject to paragraph 3, disclosure of any information obtained by a person ...”. I thought that would suffice, and I did not read the end of the paragraph. I have removed the verb and the paragraph now lacks a verb. I ask the Minister to bring in that amendment on Report Stage, and to accept amendment No. 27.
Professor Lee: A Chathaoirligh, I apologise. I signed this amendment without having checked the grammar. I will be more careful in the future.
An Cathaoirleach: Perhaps I should say, Senator Norris, come back, all is forgiven.
Mr. R. Quinn: At a time when the nation's children are agonising over the leaving certificate, it is nice to hear a teacher and a professor admit that they have also made mistakes. I accept amendment No. 27, and I will come back on Report Stage in relation to amendment No. 29, as there is a textual change.
Amendment agreed to.
Mr. F. Quinn: I move amendment No. 28:
 In page 11, line 21, to insert the following sub-paragraph:
(1) In this paragraph, ‘information’ shall mean confidential information relating to the business of a company receiving support from Forfás or the Agencies.
The purpose of this amendment is to cut down to size what I would call the truly draconian measure, paragraph 5, on information disclosure. As it is currently drafted people would be breaking the law if they gave the telephone number of a colleague. It would make it illegal for anyone in any of these bodies to make a public speech, to issue a press release or even to write a business letter. The paragraph is hopelessly overdrawn in terms of scope, and I suggest it is ridiculous.
In my view, the only kind of information that needs protection by law is the confidential information the bodies may acquire about their clients' business. My amendment restricts the scope of the paragraph to that information. There may be other ways of restricting the scope of this paragraph, and I am not hung up about the way of doing it, but we cannot leave it as it is at the moment. There is a whiff, if I may suggest, of the police state about it that is most upsetting. Our whole thrust should be towards more openness in public administration not less. The word “information” without any restriction needs to be controlled; hence I suggest the following: “confidential information relating to the business of a company receiving support from Forfás or the Agencies.” It has to be restricted, otherwise it is ridiculous.
Mr. R. Quinn: There is a concern about this. We had the famous case of Clive Ponting in the United Kingdom where it could be argued that he was performing a citizen's duty, if in fact he was a citizen but regrettably for him he is a mere subject. It is not yet a place in which citizens are treated as such in that sense.
In the Industrial Development Act,  1986, the fine was £800, and this was increased to £1,000 in line with the Trade and Marketing Promotion Act, 1991. The intent is, quite clearly, confidential information, and I know that Senator Quinn is not disputing that. The point is where do you draw the line? I have been formally advised on this in writing by the IDA because it was consulted in this matter and was anxious that there would not be any change. Senator Quinn's suggestion that a board member could not even disclose a telephone number is dealt with in paragraph 5 (3) which states:
Nothing in subparagraph (1) shall prevent—
(a) disclosure of information in a report made to Forfás or either Agency (or on behalf of Forfás or either Agency) to the Minister
(b) disclosure of information by Forfás or either Agency or by a member of Forfás or either Agency or of any committee or other body established under this Act for the purpose of a scheme of research and development or a scheme of acquisition of product and process technology.
A distinction is being made about different kinds of information.
I am not in a position to accept the amendment. I do not have that authority because I would have to go back and consult with my Cabinet colleagues on it. I am concerned about the “whiff of the police state” Senator Quinn referred to, and I will look at it without any commitment whatsoever about coming back to this House.
I am not aware of any prosecution that has taken place or difficulty that has arisen in relation to it. I take the point the Senator is making and I will consult with the relevant Ministers and the IDA and, if needs be; I will come back to the Seanad. However, I would be misleading you if I did not say that that is most unlikely. I take the points that have been made but the Bill will stay as it is.
Mr. O'Toole: That is surely an error.  There is no doubt that paragraph 5 (3) to which the Minister referred does not deal with casual information. The legislation is specific, and I challenge the people in the IDA who say otherwise. Paragraph 5 (1) states that: “Subject to subparagraph (3), a person shall not disclose any information...”. There is no qualification on the word “information” except that outlined in subparagraph (3). Sub-paragraph (2) is specific and says that: “A person who contravenes sub-paragraph (1) shall be guilty of an offence ...”. The legislation we are about to pass says that — to take a ridiculous example — a person would be guilty of an offence if they give out the telephone number of a company they learned while acting as a member of the board. I am not saying anybody will be pursued for that, but any legislation which is either unenforceable or will not be enforced is bad legislation.
Notwithstanding any information received by the IDA, surely a concession could be made by inserting the qualification “confidential” before the word “information” in Senator Quinn's amendment. Then at least somebody would have to interpret the word “confidential” in court. That is the easiest way to deal with it. This issue has been dealt with by other organisations in many ways, the normal way being that at the end of each meeting the board would determine what information was confidential. That procedure is written into the rules and regulations of primary school boards of management. It is something about which I have a lot of information and it works adequately. Under those rules someone can be dismissed from board membership for disclosing confidential information and it is up to the board to decide what is and is not confidential.
A gesture should be made which would not change the advice given by the IDA and other people to the Minister by simply putting “confidential” before the word “information”. Then at least somebody  would have to interpret what “confidential” meant.
Mr. R. Quinn: That is precisely the point. I have been advised that it would be difficult for the courts to determine what constitutes confidentiality. That is the problem. All I can say is that I note, understand and share the legitimate concerns expressed. I will look at this again and if we can find a formula and can get it debated and out of this House quickly, then I will do so.
With respect to the boards of management of national schools, they are not dealing with the same level of confidentiality or sensitive material.
Amendment, by leave, withdrawn.
Amendment No. 29 not moved.
Question proposed: “That the Second Schedule, as amended, be the Second Schedule to the Bill.”
Mr. O'Toole: I wish to raise a point on paragraph 2 (5), covering the situation following the election of a person to the Oireachtas or the European Parliament, which states:
...that person shall thereupon stand seconded from the employment of Forfás and shall not be paid by, or be entitled to receive from, Forfás, any remuneration or allowances in respect of the period commencing...
I would like the Minister's assurance that that would not include arrangements for a person to continue to pay into a pension fund of either agency. I ask the Minister to assure me the phrase “remuneration and allowances” has nothing to do with superannuation arrangements dealt with in the paragraphs following.
Mr. R. Quinn: I can give that assurance. The wording is: “shall not be entitled to be paid or entitled to receive”. Making contributions to a pension fund  would be a different matter. That is our interpretation.
Question put and agreed to.
Third Schedule agreed to.
Amendment No. 30 not moved.
Title agreed to.
Bill reported with amendments.
Agreed to take remaining Stages today.
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