Business of Seanad.
Order of Business.
Property Services (Regulation) Bill 2009: Order for Second Stage.
Property Services (Regulation) Bill 2009: Second Stage.
Schools Building Projects.
Swimming Pool Projects.
Human Rights Issues.
Chuaigh an Cathaoirleach i gceannas ar 10.30 a.m.
An Cathaoirleach: I have received notice from Senator Dominic Hannigan that, on the Adjournment of the House today, he proposes to raise the following matter:
I have also received notice from Senator Ciaran Cannon of the following matter:
I have also received notice from Senator David Norris of the following matter:
I have also received notice from Senator Cecilia Keaveney of the following matter:
I regard the matters raised by the Senators as suitable for discussion on the Adjournment and those raised by Senators Hannigan, Cannon and Norris will be taken at the conclusion of business.
Senator Keaveney may give notice on another day of the matter she wishes to raise.
Senator Donie Cassidy: The Order of Business is No. 1, Property Services (Regulation) Bill 2009 — Second Stage. It is proposed to take No. 1 at the conclusion of the Order of Business. Spokespersons may speak for 15 minutes and all other Senators for ten minutes, and Senators may share time.
Senator Frances Fitzgerald: The country is reeling since yesterday from the revelations contained in the Ryan report. It is hard to look at the pictures in The Irish Times today of the institutions in question and to read and listen to the words of the victims. If it is hard for us to listen one can only imagine what it was like to experience the physical and sexual abuse, the ongoing trauma and the inability to escape from it. People were kept as prisoners and there was a complete failure by the State and everybody to put children’s rights to the front. As all reports today state, there was endemic physical and sexual abuse. It was totally horrific.
One is left speechless at the sheer horror of what these many hundreds of Irish children endured over a very long period. The protection of abusers seems to have been at the heart of what was going on. One can take any page from the report, as a number of radio programmes did yesterday, and quote from it:
I ask that the Ryan report be put down for debate at the earliest possible opportunity. What is really important is that it has been published and we can hear these voices through the report. Many legal actions were taken to prevent publication of the report in the course of its ten years. There is still a considerable level of denial and resistance and a refusal to acknowledge what took place. On the website of the commission we can see the legal attempts and delays which were put forward to prevent this from emerging. When the banks recently took the types of decisions they did and the public was outraged, there were calls for the Garda to go in, and we saw a police raid, as it were. What is documented in the report must be followed up by the Garda, the State and everyone in the most rigorous manner. I remind the House that two weeks ago the Seanad discussed the fact that the Ombudsman for Children could not get the details she wanted from the HSE. Yesterday, we spoke about 254 children who were in adult mental health institutions instead of getting the type of care they needed. We talked about the Monageer report with its blacked out recommendations, and this was just in recent weeks.
There are continuities in the protection of children in this country and there is still denial of the need to put children’s rights at the centre. Until that situation changes, children will continue to be abused. This was abuse on an horrific scale in a wide range of settings. It was not just about isolated institutions in Letterfrack and Artane. The confidential report says regarding adults who spoke about their abuse as children that it was widespread, occurred in 161 settings, in primary and secondary schools, hospitals and foster care, and involved volunteers visiting those institutions.
While we do not have time on the Order of Business to discuss the many issues in the report, there are issues about justice and implementing the recommendations. When a Minister comes to this House next week to discuss this report, we should have a Cabinet response.
Senator Joe O’Toole: I propose an amendment to the Order of Business that we discuss the Ryan report today, if at all possible. I listened to the Leader’s reply on it, but I believe this is an urgent issue.
Senator Fitzgerald’s point is crucial. This covers the whole of our community and follows logically from one step to another. The problem two weeks ago with the Ombudsman for Children was that she did not get some information from the HSE. The reason the executive did not give the information was that it was supposed to have come from Cloyne. The reason it did not was that the church authorities would not give all the information and sent their lawyers chasing the HSE. That is what we need to look at.
It is not just the churches, although I shall come back to that. There is the clergy and the churches, the State, politicians, the Judiciary and the media. All of us have questions to answer. We have provided an enormous carpet under which all of this was swept and hidden. We need to look at the common bonds. I want to put on record where I believe an enormous element of the problem lies — I know what my phone is going to do after this — namely, with the pervasive influence of those secret, shady, sinister, right-wing Catholic organisations that have been in the middle of this all my working life.
Senator David Norris: Hear, hear.
Senator Joe O’Toole: I can give the House chapter and verse and name the people who stood in the way of the Stay Safe programme, mandatory reporting, sexual education programmes in schools and I could go on. These people did the same here in education in some of the high offices of State and managed to carry the day. They have escaped in the course of these reports and I certainly believe they have much to answer for. There are people in this and the other House who can back up what I am saying.
A former Minister for Education, Deputy Mary O’Rourke, sat in a room with me when we saw them at their worst, having a go at us on the Stay Safe programme, and that is 25 years ago. Inside this House more than 20 years ago we raised issues concerning mandatory reporting after Kilkenny, Mayo, etc. to ensure teachers, social workers and gardaí would have to report, but it never happened. All these things ended up in culs-de-sac when they were reported. The information was to be found in many places and yet it never flowed out of those culs-de-sac. Excuse me if I have a curl in my lip when I think again about all that spurious, specious argumentation being put about by these groups about destroying the innocence of young people at a time when they were being destroyed and wrecked and their lives, not just their childhood, was being taken from them in these institutions.
We have a great deal to answer for. I would like this investigation to go further to see where these influences were brought to bear on the Department of Education and Science, other Departments, Governments, media and on the church to ensure this thing was never dealt with when it should have been.
Senator David Norris: Hear, hear. Well said.
Senator Michael McCarthy: I agree with the previous two speakers and share their sadness at the report of the Commission to Inquire into Child Abuse. Without question, it is the most shameful episode in Irish history. I was listening yesterday to a number of radio stations on the Internet. They were based in the UK and it was, quite rightly, the lead story, as it was on Sky News. One heard the harrowing accounts of people who suffered abuse at the hands of those evil monsters. For example, one victim, who was at the centre of the documentary, “Dear Daughter” in 1996, said last night that she was terrorised and brutalised from the age of three weeks to 17 years and ten months in an institution. It is appalling, sickening and disgusting. One empathises with Senator O’Toole’s passionate contribution about the right-wingers, the extreme head-bangers who stood in the way and provided obstacle after obstacle when people tried to get the truth and when the victims of this horrid and evil abuse attempted to get some type of closure on the issue.
It is not good enough for an organisation such as the HSE, an agent of Government to put obstacles in the way of someone such as the Ombudsman for Children. Neither is it good enough for a number of the recommendations in the Monageer report to be blacked out. If we have learned anything, surely it must be that the first duty of the State is towards those victims. We need to ensure this never happens again and, critically, that these evil monsters and the people who tried to protect them end up in jail where they belong.
I have two other issues to address. One is the ever-falling interest rate. The ECB rate fell again last Thursday week to 1%. I reiterate my call to the Leader to bring the Minister for Finance to the Seanad and try to get agreement on behalf of the thousands of young couples and others who are locked into fixed-rate mortgages. People are paying 4.9%, 5.2% and higher in interest rates because of the advice available about fixed rates when they applied for mortgages two or three years ago. They now find themselves being penalised when they try to change to variable rate mortgages. In some cases people are being quoted €12,000 or €14,000 to break their agreements. We all know that is not going to happen because these people are cash strapped. Will the Leader invite the Minister to address the House so that we can argue that since he has guaranteed the banks using taxpayers’ money, there should be some quid pro quo?
My other point is that many people have found themselves on the dole queues in recent times and, unfortunately, there will be many more before the year is out according to the forecasts and expert advice that is available to us, which we have no reason to question. A great many people have information technology, IT, experience and there are plenty of opportunities, apart from challenges, presenting at this time. Many people would prefer to be in training programmes and earning money as opposed to hand-outs from the State. They need, to quote Deputy Eamon Gilmore, to get a hand up. The Government needs to expand its job creation and protection policy, which is clearly lacking at the moment. There are hundreds of thousands of people in America and Australia who can boast of Irish lineage, such as the John F. Kennedys, Ronald Reagans etc., whose families have emigrated over generations. As historical records were burned in the Custom House in the early part of the previous century, thousands no longer have the information available to them if they wish to trace their family trees. I suggest that instead of job creation, protection or training initiatives, we should give people with IT experience an opportunity to go into the parishes, which have very good records going back to the middle of the 19th century, research this type of information and market it in a way that produces jobs, high quality information and extends a great service to the Irish diaspora and the many millions who claim Irish connections. In that context I call for a debate on job creation and job protection in terms of new initiatives that would get the unemployed to come back into the workplace.
Senator Cecilia Keaveney: I add my voice to those who have expressed horror at the findings of the report of the Commission to Inquire into Child Abuse. I do not want to understate or belittle in any way the very serious institutional abuse by adding that I believe a great deal of abuse is happening outside the institutions as well. We could well have a debate on how people might be persuaded to come forward about current abuse, not only in institutions but outside them, for example, within families. Such victims should be offered support and assured they will get the level of help they need once they come forward.
Today, the Dáil will debate the issue of Duchenne muscular dystrophy. This is an ongoing and difficult condition which causes people to die at a young age. However, the quality of life of people who have the condition could be improved because opportunities for this are being developed in Newcastle. I ask the Leader to mirror the discussion in the other House and arrange for a debate on Duchenne and other forms of muscular dystrophy. People are dying, having enjoyed only a short life although measures are available to slow the progress of the disease. We must discuss this issue.
On previous occasions, I raised the issue of ordnance survey maps showing Londonderry and Doire but not Derry. It has been brought to my attention that the Department of Social, Community and Family Affairs has sent refusals of applications for jobseeker’s allowance to people who, while they may not live in the Twenty-six Counties, their families come from here and they have had many interactions across the Border over many years. These people have received letters containing sentences such as: you came to reside in Ireland in 2009, having lived outside Ireland all of your life; your centre of interest is not Ireland; you have no links or family ties in Ireland; your immediate family resides outside Ireland and; you do not have an employment record in Ireland.
In a post-Good Friday Agreement context, if those words were written by someone other than a Department of our Government we would be quick to reject the assertion that people who live on part of our island have no connection whatsoever with Ireland. I ask that we look at the language being used in these letters and in other official documentation. How many other Departments are using similarly offensive language on behalf of the Irish people?
Senator Ciaran Cannon: Two or three years ago, while channel flicking late at night, I came across a movie, “Song for a Raggy Boy”. The end credits confirmed that this horrendous movie was based on real life experiences of children in the institutions we are discussing now. The film crystallised for me the suffering and utter despair endured by these children. It is a credit to the indomitable human spirit that they saw any reason to get up in the morning. How they found the will to live and survive amazes me.
While the Catholic Church found its unique, heinous and very special version of the culture of the time in carrying out horrendous acts on these children, that culture existed across all of Irish society. It was acceptable to visit physical violence on our children. It happened in our schools and our homes. Let us be honest. How many of us had school principals who asked us, every September, to gather sticks so he or she could choose the most suitable one for visiting violence upon the children? Every one of us should be ashamed of that and held responsible for it.
For all the hand wringing and soul searching we will engage in over the next number of weeks, only one reaction is appropriate from legislators and citizens. We must ensure this kind of abuse can never happen again. As we go to bed tonight, children across the country are crying out for that same help and feeling that same despair and loneliness. We are still not reacting to their calls. Last year, the ISPCC received 600,000 calls from such children. Only half of them were answered. Can we, as a Government and as legislators, be proud of this record? We can not.
This is the single biggest wake-up call this nation has ever received. It is a call we must answer. History will judge us by our reaction to this call. Shame on every one of us, as parents, citizens and legislators, if we do not answer this call as it deserves to be answered.
Senator Eoghan Harris: I abhor the kind of anti-clericalism which seizes on atrocities such as this. However, as one born and reared as a Roman Catholic, I ask is there something special in the religion of my childhood that allowed this systemic abuse. At first glance, it would appear there is. Although there was a large proportion of Protestant children in institutional care in the Republic, abuse of them was very rare. I remember reading in the Cork Examiner how when Protestant children would get out of orphanages in Kerry, local Protestant shopkeepers would look after children when they were on the run.
In Northern Ireland, institutional abuse of Protestant children was very rare, apart from the Kincora incident, and almost unknown in Roman Catholic institutions. There is not something inherently bad about Roman Catholicism but there is clearly something inherently bad about Roman Catholicism’s relationship with the Irish Republic.
Senator Joe O’Toole: That is right.
Senator Eoghan Harris: Under British rule, these abuses were not practised in Roman Catholic institutions and Protestants did not practise them. The responsibility belongs to the Republic as a whole. I will not rehearse any political indignation but I challenge the assumption that this cover-up is new.
Daniel Corkery said Irish identity was made up of land, religion and nationality. These three factors operated in this abuse. Most of the Irish Christian Brothers I knew came from rural Ireland. They came from the tradition of the cover-up of the Great Famine. The fact that strong farmers survived the Famine and spailpíns died was covered up. In west Cork they talk about the descendants of Famine victims. The victims of the Famine are all dead and the descendants are in graves. The victims of the Famine in the Skibbereen area were all people who looked after their turnips. The complicity of the Famine has been covered up. A few landlords cannot grow, transport and export grain. The rural bourgeoisie was involved in the Famine.
There was a cover-up of the brutality of the War of Independence and the Civil War. We covered up pogroms against Protestants. We are very good at covering up things which touch on the national question. I have no doubt that every brother and priest involved was a devout nationalist. Indeed, that was part and parcel of the thing. The relationship with the Republic, its professional classes and the republican ethic concerns me. Ministers for Education, politicians, barristers, lawyers, doctors and the entire Irish professional middle class, who all professed republicanism and all wanted a united Ireland, turned a blind eye. It is ironic that if we had never left the British Empire and if the Treaty had never been signed, whatever else we might have suffered, these innocent victims would never have suffered. Our promise to cherish the children of the nation equally turned out to be an empty one.
I say these things as a warning. There is a deep brutality in Irish nationalism. It came up most recently in the Provos punishment beatings of children in Belfast ghettos. The problem is not simply in the Roman Catholic Church, it is in the republican ethic itself.
Senator David Norris: The most chilling and damning words on the front page of The Irish Times this morning are “systematic” and “endemic”. They tell the whole story. This was known to many people in authority. In the Church, responsibility goes right to Rome, where a report detailing the systematic and endemic sexual abuse of children gathered dust for 60 years.
I respectfully disagree with Senator Harris, to an extent. The Protestant section of this society is not exempt, except by whitewash. I attended an up-market Protestant boarding school where sadism was rampant and someone very close to me had his life destroyed by this sadism. It is extraordinary that the Protestant churches should be so completely excluded. I feel great compassion for the victims but I also feel compassion for the many decent, good and self-sacrificing members of the clergy who are now tarred with the same brush, in the same way that we as politicians are tarred.
What about the judges? Children, trembling, terrified and clearly physically injured, routinely turned up in front of the judges of the State and not one of them ever asked a question. The judges are as guilty as anyone else in this State and we are guilty too.
I remember what Senator O’Toole was talking about and the debates about the Stay Safe programme. Those people were in this House as well. I listened to them talking about protecting the family against children. It was disgusting and repellant and it is disgusting, repellant and obscene that still we have a situation where the churches, the very people that are indicted in this report, are exempt from the operation of the equality law. They are not equal with the rest of us and they are placed above the law. How can anyone tolerate that the people who visited this on the innocent children of the country are exempt from equality law?
The bullying and psychological torture of young people is still going on and is facilitated by us. Christ and Caesar are still hand in glove in this place and we are guilty of it. For that reason I not only support and second Senator O’Toole’s amendment, but propose a simple amendment of my own, that we take No. 29, motion 9 and allow ten minutes for it. The motion, in the name of Senator O’Toole and I, simply states: “That Seanad Éireann, in the light of the Ferns Report [and the Cloyne report, the Laffoy report and now today this unspeakable revelation], requests the Government to re-examine the exemption of the churches from the operations of equality legislation.” We should do so today in a ten-minute statement and we need not even take a vote but simply pass the motion. We are not condemning anyone or prejudging the issue. We are calling for it to be re-examined. If we do not do so today the House stands in contempt and in dereliction of its duty to the children of Ireland.
Senator John Hanafin: I agree with the calls for a debate on the report at the earliest opportunity. The report is harrowing and reflects certain aspects of Irish society dating back to the 1930s. There are 70 years of history in the report that is chilling and heartbreaking and on which we must act.
The reality is that in Ireland until recently there was a certain exemption in people’s mind’s eye for certain people in authority. Given such exemption, there was a mistaken and misappropriated belief that certain people, because of their position, were inherently going to do the right thing. Of course, that ignorant misapplication of authority has now proved to be the undoing of many a young life. I suggest the debate, whenever it takes place, should examine that misapplication of authority. In other words, we attributed a virtue to those who should have been following the Christian values when in fact they did not deserve it. That remarkable misapplication of trust is something for which any of those who crossed the line in such a severe manner can never be forgotten. It is all the worse because many of them were specifically in authority and claimed to follow the Christian virtues.
I recognise that it many not be possible to hold the debate today. I trust and hope that this will not be misrepresented in the media, as was the case with a previous debate that we refused. That is what occurred in respect of the debate on the Adoption Bill. We did not refuse; the Minister was not available on the day. However, it was misrepresented by a member of the Opposition and it was suggested that we did not want the Minister in the House, which was not true. We seek this debate at the earliest possible date.
Senator Dominic Hannigan: I join other Senators in expressing my dismay about the recent report. It is clear that our children have been done a great disservice by the State. It is something of which many of us would have been aware from our school days. We witnessed institutionalised criminal activity taking place in many of our institutions and there was a policy at the time of “spare the rod and spoil the child”. We must learn from this report.
I refer to Senator Cannon’s statement to the effect that many children to this day are not getting the support they need. The report is harrowing in its account of the past victims of these institutions but let us not forget the children of today who are suffering in schools and institutions. We must ensure we put the necessary resources in place as soon as possible because many of them will try to contact with helplines and we must ensure their voices are heard. I second Senator Norris’s amendment.
Senator Maria Corrigan: I join colleagues regarding the comments on the report. Words cannot describe the profound sadness and anger elicited by the contents of the report, the testament it bears to the broken lives of those left in its midst and the heroes who had the courage to speak to the inquiry. I have no doubt there are people who are too broken and debilitated to have been in a position to put their stories on the record for the inquiry and the report is equally significant for those people.
I join other colleagues in calling on the Leader to ask the Minister to come to the House as soon as possible. Given the experience which Members of the House bring to this area, any such debate should have several specific purposes. These include identifying what must now be done for these people to ensure that in moving on they have the best quality of life, identifying how we implement the recommendations, and, very importantly, keeping in mind that the abuses were perpetrated on a very vulnerable group of children.
There are still vulnerable groups of children today, some of whom are not in a position to ring hotlines or contact someone for the purposes of seeking help, whether these be children with disabilities, children in the care of the HSE or non-national children in the care of the HSE. We should also use this debate to identify what we can learn from the report and how we can apply this to ensure the best possible protection for those vulnerable groups of children now in our care.
Senator Liam Twomey: There have been some excellent contributions and I echo the calls for a broader debate on the issue because of what may result. Everyone in the Chamber represents different generations and we all understand the apathy and complacency attributed to the abuse that took place when we were growing up. In many cases we did not quite comprehend the significance of it and what effect it would have on people because we were detached from it. In my professional life as a doctor I have been peripherally involved in some cases, which often do not strike home unless one is centrally involved.
I recognise the same dead hand of apathy and complacency is with us today as much as it was 30 years ago.
Senator Ciaran Cannon: Hear, hear.
Senator Liam Twomey: It is still there. If a person presented at a Garda station this morning to make a complaint about abuse or something else that was wrong, the garda on duty would probably suggest that the person go away and come back in a week because that garda did not have the expertise and the person who did was unavailable but that an appointment could be made. Anyone with the slightest cop-on who understands such cases knows that such a person would walk away and would be unlikely to come back if that were the response from the first person he or she met in authority. Such people would believe they had been let down as a result of what they had seen and what had taken place in their own lives in recent years.
I call on the Leader to hold that debate in the House as some of the contributions made have been fantastic. I would very much welcome a broad debate on the issue. We have a great opportunity to learn from our collective experiences. I urge the Leader to have that debate immediately, or as soon as possible. I would love to hear more of what Members have to say on the issue.
Senator Ann Ormonde: I endorse the points raised by other Senators. I would love for us to have this debate today, I am so ashamed of what has taken place. My stomach curdled today when I read the horrific accounts in the The Irish Times. I thought of myself as a child and realised the abuse was going on when I was growing up and wondered whether my parents or society knew about it.
This is a major issue that affects all of us. I am ashamed of the culture of silence that went on around us while this physical, sexual and emotional abuse was being carried out. Yet, awareness of it never penetrated society. Why was that? I was a teacher for many years, but I did not know about it. We should have come across it somewhere. There is a bigger issue. Not alone must we discuss the abuse, we must discuss society. We have a responsibility to look first at ourselves and our role. Of course those in authority are to blame. I am ashamed I was a Catholic and this was going on around me and that religious institutions behaved in this manner, because they had the power to do so.
We have the power. Society should have the power to deal with this. I hope that when we have this discussion, we talk about other issues such as the breakdown of marriage and whether physical, emotional and sexual abuse is going on currently. Who knows what is going on this morning as we are discussing this issue in the Chamber? This is a huge issue that will not be mended overnight, but we must all play a part in its repair. I would love if we could accommodate Senator Norris and have the Minister here for a debate and statement on the issue today.
Senator David Norris: I am only asking for a very mild revolution.
Senator Ann Ormonde: I do not know if a Minister is available. I am so stirred up about this I want to speak about it today. I do not believe we will be able to get that debate today, but we want it.
Senator David Norris: If we have no Minister, how can we have a resolution?
An Leas-Chathaoirleach: Senator Ormonde to conclude, without interruption.
Senator Ann Ormonde: I accept that, but it is up to the Leader. I am ashamed to have to stand here as a legislator, knowing that we, successive Governments and the religious authorities have let Ireland down. It is time to call stop. It is time to deal with broken marriages and child abuse. We must find a way out of this situation and create a better society.
Senator Rónán Mullen: I welcome the thoughtful contribution made my Senator Harris. I also echo Senator O’Toole’s call for a debate on Mr. Justice Seán Ryan’s report, repeating the call I made yesterday.
As a practising Catholic I feel sorrow and shame because some of those who officially represented the values of the gospel in which I believe failed to live that gospel in the way they treated children and in the way they failed to prevent and punish evil doing among some of the members of the orders running the institutions. They failed to rise up against this and on some occasions exemplified the cruelty of the times. This is a day to focus on those who suffered in these institutions, not everybody, but a very significant number. This should be our sole focus. There will be another time to make the points that this is not the full story of the church’s good work in Ireland nor the full story about the legacy of the religious orders. This is the very sad, tragic and despicable side of the story.
I was intrigued by the comments of Senators O’Toole and McCarthy. No doubt, there were head bangers around in the 1970s and 1980s and various campaigns. I would encourage them, because I am interested in what they have to say, to use their Seanad privilege to give us chapter and verse on that. It is important to distinguish between people who feared certain programmes, however mistaken they may have been, and people who would willingly place children in danger. We need to be careful of being too general. Let us get specific and avoid blackening whole classes of people.
The immature relationship between the church and the State is part of the story. However, we should all be conscious — I know we all are here — of the current failings of our State with regard to the protection of the most vulnerable children in our society and the fact that Children First is patchy in its implementation. We should be conscious too of the failure of other states. I think of the case of Victoria Climbie, the child who was abused so badly and whose social workers failed to intervene due to a politically correct fear of being seen to be hard on minorities. This happened in Britain. Therefore, abuse is not just a story about religious orders or Ireland.
Undoubtedly, there is something we must reflect on and learn from about power and about that immature relationship that existed between religious and State authorities where there was not sufficient responsible oversight so that evil doing was rooted out in time. As a result of that failure, much more evil doing happened and that is the great tragedy of all of this. At all times let the dignity of the person be at the front and centre of our policy choices and let us focus on that most of all at this time.
Senator Labhrás Ó Murchú: I agree with many of the comments expressed regarding the revelations of the Ryan report. There is no doubt it exceeded even our worst fears. All of us will endeavour to get behind the report and try to understand in some small way the terrible suffering through which these innocent children were put. These children were already deprived of a normal, loving family life and then placed into a brutal regime, for the most trivial of reasons. These were innocent youngsters and should not be thought of as children who had to be put into that type of institution.
Those people who perpetrated these terrible acts have not only done terrible damage to these young lives, but they have done terrible damage to the good name of Ireland, to the religious orders and the church to which they professed loyalty. They wanted to have a vocation and to be fully part of that type of life. One is reminded of the fate the founder of the Christian religion described would await those who scandalised little children in any way. I find it impossible to understand how anybody set out to dedicate their life to that religion and then prostituted — in every sense of the word — the very basic tenet of that religion.
I agree with Senator Mullen that we must first think of the victims. One can only imagine what they have suffered for several decades, when they felt they were absolutely and utterly ignored. Very often, their plaintive pleas were not even heard or acknowledged. We have a report now and some feel that is progress, but others feel it is not. The fact that some of the victims were not allowed into the press conference yesterday tells us something. It would have been possible to get a bigger room. Those victims should have been a central part of the conference.
I agree with the point made by Senator Norris that as a result of what has happened, all those who did good in religious orders are now painted with the same brush. I know we will all look back over our childhood to see if we can remember something that was inappropriate at the time. I was a pupil of the Irish Christian Brothers, but in all my life I never noticed anything that was inappropriate and never heard anything being said against them. When we had a reunion of Christian Brothers’ pupils, they came from all over the world to express their gratitude. While it is not for today, it is important we have balance.
Today we must concentrate on the victims. One of the most telling pictures I saw in the paper were the little gravestones of young people who had died while they were in these institutions. One can only imagine, never understand, the trauma they suffered. I compliment Judge Ryan and all those who sat on the commission. There is no doubt, they have done something vital. We must, once and for all, try to eradicate this from the Irish system. We must not only ensure it does not happen again, but go beyond that and legislate in such a way as to ensure it cannot ever happen again.
Senator Paul Bradford: This is a harrowing and powerful debate. The Seanad can be proud of the work of it is doing this morning. I hope the dreadful contents of this report can be debated in great detail in this forum over the coming weeks and months. I have listened with interest and awe to the powerful contributions that have been made by my colleagues. I was very impressed with the historical analysis that was given by Senator Harris. When we consider the manner in which the children of this nation were dealt with, as outlined in the report that was published yesterday, we can safely say the Proclamation of the Irish Republic was quickly subsumed into the valley of the squinting windows. Rather than “cherishing all the children of the nation equally”, we decided instead to control the children of the nation brutally. The Republic became the cover-up capital of the world. That veil of secrecy remains in place, to some extent. As Senator Cannon said, we face a huge challenge if we are to deal with this report and seek justice. We need to deal with the fact that children in this Republic continue to be abused and terrorised. We must accept that some of them are malnourished, hungry, frightened and fearful. That is our challenge. As well as offering justice to the victims of the past, we need to safeguard the security of children today. I look forward to a full debate on this dreadful report at an early stage. I concur with what Senator Mullen said about the great work that is being done by many Christian people, including priests and brothers. It is a shame that the behaviour of a minority, perhaps a large minority sadly, has infected the good name of many decent people who are involved with the church. I am sure we will debate these matters on another occasion. This morning, we must simply acknowledge the pain and suffering of the victims and promise that it will not happen again. I accept that such commitments were made and broken in the past. As a nation, and as a House of the Oireachtas, we should not break our word ever again.
Senator Mary M. White: I would like to outline my vision in this regard. This was a problem of social class. I would like to take this opportunity to call for the crimes that these young people were supposed to have committed, stealing a bar of chocolate for example, to be expunged. In the years in question, the district judges came from a superior class in society. We had a much more defined class structure when these things were happening. The district judges had the audacity to condemn little children and people in their early teens to industrial schools. How dare they? I would like to call for these supposed crimes to be expunged immediately. The people who committed the abuses that were exposed in the report published yesterday will not pay for them, whereas the children who were deemed to be guilty of minor offences — I am sure 99% of them came from poor families — continue to have those puny crimes on their records. I am calling for these crimes that were committed by these poor children to be expunged from the records. I am ashamed and embarrassed of my country. For people of my generation — I was born at the end of the Second World War — nothing could be worse than how the Nazis in Germany treated the Jews. The abuses perpetrated by men and women of the religious orders were just as bad as the actions of the SS men. It is shocking that people who were supposed to be carrying out Christ’s work could treat children in such a manner.
I remind the House that 5,300 children are currently in the care of the State. Some of them are in foster homes or partly fostered, others are awaiting adoption and others are in residential institutions. Believe it or not, 16 of the 21 recommendations made in Mr. Justice Ryan’s report relate to children in the care of the State who are in institutions. Mr. Justice Ryan went to the trouble of setting out 16 recommendations on how children in residential care should be protected. I have compiled documents on child care, ageing and ageism and suicide prevention. I have said on many occasions in this House that this is a great country for publishing reports and putting them on shelves, but we are hopeless at implementing them. I ask my colleagues in Seanad Éireann to demand the implementation of Mr. Justice Ryan’s report. It should be followed through until its aims have been achieved.
Senator Paul Coghlan: Like Senator Bradford and others, I have been impressed by the well-founded and eloquent contributions that have been made in this House today. I am proud to be a part of it. As everyone has said, the revelations outlined in Mr. Justice Ryan’s report are appalling and shocking. I join Senators O’Toole and Norris in calling for a debate on this issue today. We could set ten minutes aside. A Minister would not have to be present. Perhaps the Leader will agree to that. We could have a fuller debate with the Minister when time allows. For some time now, it has been shocking for us to realise that so much damage was inflicted on young people in this country in years gone by. The number of people in religious orders who inflicted it was quite small, thankfully. We have to realise that in those days, people got into positions of authority without being properly vetted. I hope the climate is much different today. I think it is. A great deal of good education was provided by some of these orders. I refer to the Christian Brothers, the De La Salle Brothers and the Presentation Brothers, for example. We do not want that to be totally overlooked. The perpetrators of these foul deeds were not dealt with. There was a culture of cover-up. We have seen it in banking, politics and business in recent times. It has infected all strata of Irish society, sadly. I would like to think we have got rid of it, but I cannot say we have. Human nature being what it is, we have all been affected by original sin, so to speak. I would like to add my voice to the many good, strong and trenchant contributions have been made today. I ask the Leader to facilitate a short debate on this matter today, as requested by my colleagues, and to arrange a more substantive debate as early as possible in the weeks to come.
Senator Ivor Callely: I am happy to support the call for a debate on Mr. Justice Ryan’s report. First and foremost, I would like to lend my solidarity to all the victims. I hope we will learn from this episode. Equally, we should acknowledge the good work carried out by many of the people, and the agencies of the State, that were charged with looking after children in the care of the State. I agree the report published yesterday should be a catalyst for change in the way we go about our business. While I accept that many of these victims ended up in care after allegedly committing crimes as children, that was not how all of them ended up in care. Some of them were placed in these institutions as a consequence of a variety of social, domestic and family issues. In some cases, it was in the best interests of the children involved to be in care. We should be fair and honest about this. Many children were rightly removed from circumstances in which they were at risk. I hope some of them were placed in an environment in which they were not at risk. We should not be blinkered in our vision in any form or fashion. There is a broad range of issues here. In addition to child abuse there is abuse of elderly people in our society. People spoke yesterday, as I did last week, about vulnerable people being placed in care. The finger points at us to outline what we are doing about resources for care and what legislation is in place. We must be prepared to grasp the nettle and make the tough decisions on these issues and stand over them.
I have asked the Leader for clarification on a separate issue. I understand that the Health Service Executive is changing the administration of the medical card system. We are led to believe that this is being done to save money and improve organisation but the medical card administration section is being brought to Finglas, contractual staff are being brought in to do the work and the existing medical card officials, who do the work parochially and with whom people interact about their applications, are being assigned to other duties. This is another mistake whereby more money is being spent on administration than on the social supports required within the HSE.
An Leas-Chathaoirleach: Senator Leyden is the last speaker and he has two minutes to speak.
Senator Terry Leyden: I hope everyonewill be allowed to speak today and I strongly recommend that the Leader extend the time for the Order of Business because everyone should have an opportunity to express their abhorrence of what occurred over a long period in our society. I commend the Ryan report and very much regret that the victims were excluded from its launch yesterday. It was a shoddy launch that did not allow the victims to be given the report in a dignified way, and was an extension of their bad treatment.
The industrial schools were more like concentration camps than training camps. They were run by boot boys. It is appalling and horrible to think of the way innocent children were abused at those schools and we all stood idly by. Neighbours must have known what was going on. Lay people were also involved and they turned their heads. One brother who was not performing properly received a standing ovation when he came into his room because he had broken a child’s jaw. It had been said that he was too soft. When we were in school in the 1950s the threat hung over every child that if he did not attend he would end up in an industrial school. We all experienced the gross physical punishment in Christian Brothers’ schools. That is a fact. The leathers were probably made in Artane to allow the brothers to beat children. We were terrified.
I did, however, meet brothers of the highest calibre. It is easy to condemn but we must recognise the others such as one who meant a lot in my area, Brother Paul O’Dwyer, now deceased. He was exemplary in everything he did for us. Many brothers in the schools were top class. Let us be clear that there were two types of brother. We at least had secure family situations. I knew brothers who abused other boys who had stammers and destroyed their lives. Their parents tried to defend them but it was impossible to defend or help them at that stage. There were many types of abuse.
It was a horrible era in Irish life. It was a hidden, secretive period when all these situations were brushed under the carpet and ignored by everyone, including the Judiciary. One person wrote to a relative in the Judiciary to ask him to send more pupils to his school because it needed more money. That was the type of internal activity that was occurring. The State handed these children over.
An Cathaoirleach: The Senator’s time is up.
Senator Terry Leyden: I understand but I have made the point that in the circumstances the Leader should request the Cathaoirleach to extend the time for the Order of Business this morning.
An Cathaoirleach: My hands are tied on the Order of Business.
Senator Terry Leyden: In the circumstances it would be only fair and appropriate that the Leader would extend the time. This is very important. I do not mind whether there is a Minister here or not. We do not need a Minister here to express our views on this situation. We are all involved. It is not the responsibility of any particular Minister. All those Ministers who stood idly by are dead. If they were not they should be on trial, no matter what side of the House they came from.
An Cathaoirleach: The Senator’s time is up. My hands are tied.
Senator Terry Leyden: I am asking the Leader to extend the time.
An Cathaoirleach: I call the Leader to reply.
Senator Terry Leyden: I am asking the Leader to extend the time.
An Cathaoirleach: I am asking the Senator to leave the House.
Senator Ann Ormonde: Senator Leyden should sit down.
Senator Terry Leyden: If the Cathaoirleach wants me to leave the House I will leave it. I am not sorry and I am not going to say I am sorry.
Senator Donie Cassidy: Senators Fitzgerald, O’Toole, McCarthy, Keaveney, Cannon, Harris, Norris, Hanafin, Hannigan, Corrigan, Twomey, Ormonde, Mullen, Ó Murchú, Bradford, Mary White, Coghlan, Callely and Leyden all expressed their shock and horror. I have been a Member of this House for a long time and have never seen one issue dominate the entire Order of Business. The seriousness with which colleagues have treated this matter has been unprecedented to my knowledge. Colleagues have given various responses to the Ryan report on the abuse of children, their suffering, horror, torture and to the hard work and endeavour by Mr. Justice Ryan and his team over ten years to bring this report to this point, to the Minister for Foreign Affairs, Deputy Micheál Martin, who commissioned the report and the former Taoiseach, Deputy Bertie Ahern, who apologised for the scandalous behaviour that took place. Senator Fitzgerald pointed out the 161 settings and Senator Mary White said that there are 5,300 young people in institutional care at present——
Senator Mary M. White: I said they are in care, not in institutions.
Senator Donie Cassidy: All these matters and issues must be dealt with and we have got to show a lead as legislators in introducing regulations for the protection of children for the future. All morning as colleagues spoke in the strongest, most forcible and passionate way the thought went through my mind that the report brings us up to 1990. What is the situation from 1990 to today? It has been pointed out that we discussed the Adoption Bill here for seven days so we gave all the time that was necessary for Senators to make their views known.
We must deal with this report. Young boys who for the smallest of reasons, maybe mitching primary school for a few weeks, were placed in these institutions and to their horror have experienced lifelong suffering. Of course there was class distinction as Senators Harris, O’Toole and Ó Murchú pointed out, because it was a terrible time, during the Second World War and after, the early 1960s and 1970s, in the main when this happened. These are experienced commentators in their own fields, apart from being Members of Seanad Éireann who have given their views to the House.
Senator Norris proposed an amendment to the Order of Business and in principle we have no difficulty with the sentiment of his motion No. 9 on the Order Paper. I propose that next Wednesday we will deal with this report. I will meet with the leaders of the various groups after the Order of Business this morning to get an agreement from them on the time required for us to deal with this report starting next Wednesday. I can assure the House that there will be no time limit on colleagues who wish to make their views known on the report. At the start of the contributions next Wednesday I intend that we will take No. 9, the amendment proposed by Senator Norris and his colleagues.
It is hard to deal with anything else on the Order of Business this morning but Senator McCarthy raised matters regarding fixed rate mortgages. Up to 20% of mortgage holders may have fixed interest rates. Next Tuesday afternoon and evening we will have statements on the National Asset Management Agency, NAMA, as requested yesterday. The issue raised by the Senator could be discussed then because financial issues will be under consideration in the House. The Finance Bill will be taken in the House next Thursday. I agree with the sentiments of the Senator regarding mortgage holders with fixed interest rates.
With regard to upskilling and the family tree, as we all refer to genealogy, in the 1980s when there was no employment, the bishops in the dioceses, to be fair to them, took on one or two staff in every parish to put together the data on births, deaths and marriages which date back to 1820 and 1830 in most cases. The Senator’s suggestion in this regard is worthwhile and we will see how we can make progress thereon.
Senator Keaveney expressed serious concern over young people at risk and especially young people who are dying. I will certainly have no difficulty in passing her strong views on to the Minister. I will consider her point on Ordnance Survey maps referring to Londonderry and Doire but not to Derry and all the issues in respect of which she has practical experience.
Senator Callely expressed his sheer disappointment over the centralisation of the medical card system. Every Member of this House believes it is not a good move by the HSE and we all wish responsibility would be returned to the dedicated hard-working staff in all the old health board areas where every two counties had perhaps one person looking after the medical card system who, in many cases, knew many of those applying. Centralising the system will certainly not make it more efficient; it is a step backwards.
An Cathaoirleach: Senator O’Toole has proposed an amendment to the Order of Business: “That the Seanad discuss the Ryan report today.” Is the amendment being pressed?
Senator Joe O’Toole: On the basis of the Leader giving a very clear indication that we will be taking this issue next Wednesday, I do not intend pressing it.
An Cathaoirleach: Senator Norris has proposed an amendment to the Order of Business: “That No. 29, motion 9, be taken today.” Is the amendment being pressed?
Senator David Norris: On the basis that the Leader has gone a considerable way towards accommodating me and has indicated that if at all possible, he will allow ten minutes at the beginning of proceedings next Wednesday, I will withdraw the amendment. We will be watching for that and I hope it will be possible. Otherwise the Government’s inaction will be very badly regarded by the people. There will be other ways of resolving the matter but doing as I propose would be very important and positive.
Order of Business agreed to.
Senator Donie Cassidy: I move: “That Second Stage be taken today.”
Question put and agreed to.
Question proposed: “That the Bill be now read a Second Time.”
Minister for Justice, Equality and Law Reform (Deputy Dermot Ahern): I am very pleased to have the opportunity to introduce the Property Services (Regulation) Bill 2009 in this House and I look forward to our discussion. The Bill provides for a comprehensive and streamlined legislative framework for the regulation of auctioneers, letting agents and property management agents. It will replace the current court-based system for regulating auctioneers and house agents with an updated system for the regulation of all property services providers.
Under current legislation, the Auctioneers and House Agents Acts 1947 to 1973, licences are issued to auctioneers and house agents by the Revenue Commissioners on presentation of the required District Court certificate. The legislation is confined to auctioneers and house agents and does not extend to property management agents. The latter comprise a relatively new and expanding segment of the property services sector.
In so far as the legislation extends the licensing system to property management agents and extends statutory safeguards to the clients of such agents, mainly property management companies, the Bill constitutes an important element of the Government’s strategy to address problems arising in respect of the management and governance of multi-unit developments. I can confirm that legislation to improve the management of such complexes and arrangements for the governance of property management companies will be published within the next few days.
The Bill seeks to give effect to the principal recommendations of the auctioneering-estate agency review group which reported in 2005. At its heart is a proposal to establish a new statutory body, the property services regulatory authority, to control and supervise providers of property services and to improve standards in the provision of those services. The Bill also provides for improved consumer protection by establishing a system for investigating and adjudicating on complaints relating to the provision of property services in addition to a property services compensation fund to compensate those who suffer financial loss as a result of dishonesty by property services providers.
I turn now to the Bill’s main provisions to give Senators an outline of its scope and an understanding of how the proposed system of regulation will work in practice. Time constraints prevent me from elaborating on every provision of the Bill but, in any event, doing so is not necessary as the Bill is accompanied by a very detailed explanatory memorandum.
Under the commencement provisions set out in section 1, it will be possible to introduce the Bill’s provisions on a phased basis. Such a phased introduction will help to ensure a balanced workload for the authority.
Section 2 contains the important definitions that determine the scope of the Bill. I want to draw attention specifically to the definition of “property service” as the provision in the State of any of the following services: auction of property other than land; purchase or sale, by whatever means, of land; letting of land; and property management services. All auctioneers, letting agents and property management agents will, therefore, require a licence from the authority. This licensing requirement will apply both to the property services employer, for instance, an auctioneering company or partnership, and to individuals providing a property service in the course of employment or as an independent contractor.
If the property service is provided in the State, a licence will be required regardless of whether the property concerned is located in the State. Part 2 of the Bill contains special provisions dealing with the provision of such property services by licensed providers from other EU member states. A limited number of exemptions to the licensing requirements are set out in section 3. These include the purchase or sale of land by a solicitor on behalf of a client in the course of and ancillary to the provision of legal services and the auction of property other than land for charitable purposes.
Part 2 of the Bill contains many standard provisions relating to the structure and operations of the authority, including provisions regarding the appointment of members and staff, the conduct of meetings and the keeping and auditing of annual accounts. I draw specific attention to the main functions of the authority in section 10, which include the following: to operate a comprehensive licensing system covering auctioneers, letting agents and property management agents; to set and enforce standards for the granting of licences e.g. educational and training standards and levels of professional indemnity insurance, as well as standards to be observed in the provision of property services by licensees; to establish and administer a system of investigation and adjudication of complaints relating to the provision of property services; to promote increased consumer protection and public awareness of property services in general, and the cost to consumers, risks and benefits associated with the provision of such services; and to establish, maintain and administer the property services compensation fund. This part also contains provisions on the charging of fees; it provides that the annual fees charged by the authority should be sufficient to meet the costs of administration of the Act. This is in line with the recommendation of the review group that the new regulatory structure should be funded through fee income generated by the authority for licences and other services.
Provisions in section 18 enable the authority to prepare and publish, or approve of, codes of practice which can be given statutory effect. While breach of any such code will not be an offence, the authority may have regard to the content of the code in any proceedings to determine whether improper conduct by a licensee has taken place.
Part 3, comprising sections 28 to 42, sets out details of the licensing system which will apply in future. Under section 28, it will be an offence for a person to provide a property service without the appropriate licence unless he or she falls within one of the limited exemptions in section 3. If a licensee provides a property service other than a service for which they hold a licence, or presents himself or herself as available to provide a property service other than the service in respect of which he or she has a licence, it will constitute improper conduct and an appropriate sanction may be imposed.
In order to provide ready access to the list of licensees, section 29 requires the authority to establish and maintain a register of licensees which will be available to the public. This will enable users or prospective users of property services to confirm that a provider is registered to provide the service concerned.
Sections 30 to 34 contain details of the licensing system. Each application for a licence from an eligible person must be accompanied by references as to the applicant’s character and competence, including details of education, training and experience, a certificate by an accountant that proper financial systems and controls are or will be in place for the protection of client moneys, evidence of availability to the applicant of the necessary level of professional indemnity insurance and the appropriate fee. Applicants other than employees will also be required to furnish an up-to-date tax clearance certificate. Moreover, the legislation also permits the authority, if it considers it necessary in any particular case, to require the applicant to furnish additional information. When deciding whether to issue a licence, the authority will take into account the information provided by the applicant and, where appropriate, any information provided by the Garda Síochána under section 42. It will not issue a licence unless it is satisfied that the applicant is a fit and proper person to provide the property service concerned and complies with the other statutory requirements. A successful applicant must pay the appropriate contribution to the compensation fund before the licence will be issued by the authority.
In the case of companies and partners in a partnership, these requirements will apply to principal officers of the company or partnership. Principal officers are defined in the Bill as directors and partners as well as any manager, secretary or other similar officer of the company or partnership or anyone purporting to act in that capacity. As the principal officers of a company or partnership may change over time, it will be a condition of a licence issued to a company or partnership that the licensee takes all reasonable steps to ensure that the principal officers of the company or partnership are fit and proper persons to hold the positions in the company or partnership.
Before refusing to issue a licence in any case, the authority must notify the applicant of its intention to do so and its reasons for so doing and give the applicant an opportunity to make representations. It will be possible to appeal any decision of the authority in refusing to issue a licence to the property services appeal board which is being set up under section 72 and Schedule 5.
Arrangements applicable to the renewal of licences are set out in sections 35 and 36. A licence will be renewed provided the application is in the specified form; is made at least six weeks before the expiry of the existing licence; is accompanied by the appropriate fee and contribution to the compensation fund; and is accompanied by an accountant’s certificate that proper financial systems and controls remain in place and evidence that appropriate professional indemnity insurance is in place.
Part 3 also includes provisions imposing obligations on licensees to have the licence in their possession and to produce it if requested to do, or to display it in their place of business, depending on whether the licensee is an individual or a company. It also requires licensees, other than licensees who are employees, to include their registration number in advertisements, on their stationery, in sales brochures and so on.
Section 40 provides that where a licensee is declared bankrupt, his or her licence will be suspended immediately and will remain suspended until it expires or the bankruptcy is discharged, whichever occurs first. Section 41 requires an applicant for a licence or a licensee to notify the authority of any material matter which would be likely to affect the validity of the licence.
Part 4 of the Bill, consisting of sections 43 and 44, requires a licensee to issue a letter of engagement to all clients. Once the letter has been signed by both the licensee and the client, it becomes a property services agreement. Details of the extensive information that must be included in such a property services agreement are set out in Schedule 2. A property services agreement must include details of the services to be provided by the licensee, the fees or commission payable by the client and the period during which the agreement has effect. The authority will specify the form of letter of engagement which all property services providers must use. Part 4 also imposes an obligation on licensees to keep records of all services they provide for a period of six years.
Part 5, sections 45 to 53, contains important provisions dealing with client accounts and related matters. It updates existing provisions in the Auctioneers and House Agents Acts 1947 to 1973 and extends them to property management agents. Section 45 empowers the authority to make regulations, including the kind of bank accounts which may be opened by licensees for the keeping of client moneys; the rights, duties and responsibilities of a licensee in respect of client moneys; the accounting records which must be maintained by a licensee; and client entitlements. Section 46 makes it an offence knowingly to lodge client moneys to an account other than a client account, or knowingly to make a false or misleading entry or record in accounting records.
This section provides for both summary and indictable offences. Where a licensee is convicted summarily, the court may order that any or all licences held by the licensee be revoked and that the licensee be prohibited, on a permanent or temporary basis, from applying for a licence or a particular type of licence. Where a licensee is convicted on indictment, the court is required to order that all licences held by the licensee be revoked and the person be permanently prohibited from applying for a licence.
Part 5 also contains provisions for the protection of client moneys and documents in the event that the authority refuses to renew a licence, a licence is suspended or revoked, or the licensee ceases to provide property services. It also makes provision for the protection of client moneys in the event of the bankruptcy or insolvency of a licensee.
Part 6, sections 54 to 60, deals with the sale and letting of land and includes new provisions requiring auctioneers and letting agents to provide statements of advised market value or advised letting value, as the case may be, to their clients within a seven-day period. The advised market value of land for sale must be reasonable and the authority may investigate cases in which values appear not to have been reasonable. This value can be a price range but the difference between the minimum and maximum value cannot exceed 10% of the lower value. The advised value can, however, be altered to take account of market conditions. Where land is being sold at auction, the vendor will be prohibited from bidding for it and from authorising or permitting another person to so on his or her behalf. Where land is being sold by private treaty, section 59 requires that licensees retain records of all offers received, including conditional acceptances. In order to avoid conflicts of interest, section 58 imposes an obligation on a licensee to obtain the prior written agreement of the vendor in any case in which he or she intends to provide a financial service to the purchaser or potential purchaser in respect of the land.
Section 60 empowers the authority to make regulations on matters concerning the sale or letting of land. This will include regulations concerning the contents of advertisements for the sale or letting of land, booking deposits, the terms of building contracts and similar issues.
One of the shortcomings of the present licensing system identified by the review group is that the only available sanction against misconduct is refusal to renew a licence. Part 7 addresses this deficiency by making provision for a comprehensive system for investigating complaints and imposing appropriate sanctions where such complaints are upheld.
Section 61 provides that any person can make a complaint to the authority and the authority must investigate the complaint provided it is made in good faith and is not frivolous or vexatious or likely to be resolved by mediation or other informal means between the parties. Section 62 provides that where the authority considers that immediate suspension of a licence is necessary to protect the clients or customers, or potential customers, of licensees, it may make an application on notice to the licensee to the High Court for an order to suspend the licence.
In exceptional circumstances where the authority considers that there is an immediate risk of financial harm to clients or potential users of a property services provider, the authority is empowered to apply to the High Court on an ex parte basis for an interim order to suspend the relevant licence. An interim order can last for a maximum of eight working days. To extend any such order, the authority must apply to the High Court on notice to the licensee for a new order.
Section 63 provides that an investigation may be carried out by the authority on foot of a complaint or on the authority’s own initiative. It provides for the appointment of an inspector, or inspectors, to carry out such an investigation and to submit a report to the authority. Section 64 gives inspectors comprehensive powers to enable them to carry out investigations, including powers to enter and search premises, to carry out examinations and inquiries and to conduct an oral hearing. This section also provides that a person who obstructs or impedes an inspector is guilty of an offence.
Where a licensee is summarily convicted of an offence under this section, the court may order that any or all licences held by the licensee be revoked and that the licensee be prohibited, on a permanent or temporary basis, from applying for a licence or a particular type of licence. Where a licensee is convicted on indictment, the court is required to order that all licences be revoked and the person be permanently prohibited from applying for a licence.
Section 65 provides protection for persons, including employees of licensees, who make complaints to the authority. Section 66 sets out the actions to be taken by inspectors and the authority on completion of an investigation and includes provisions to ensure fair procedures are applied. On completion of an investigation, the inspector must submit a report to the authority. Before doing that, a draft of the report must be sent for comment to the licensee, and to the complainant if the investigation arose from a complaint.
After considering an investigation report, the authority may decide to request the inspector to carry out a further investigation, impose a major or minor sanction on the licensee if it is satisfied that improper conduct is occurring or has occurred, or dismiss the complaint and take no further action as appropriate. Before making its decision, the authority may conduct an oral hearing or invite the licensee and complainant, if the investigation arose from a complaint, to make submissions on the investigation report.
A “minor sanction” is defined in section 2 as a reprimand, warning, caution or advice, while a “major sanction” is defined as the suspension or revocation of a licence, payment of up to €50,000 into the compensation fund, payment of up to €50,000 towards the costs of the investigation or payment of a penalty of up to €250,000.
Factors to be taken into account in determining the sanction are set out in section 71 and include the need to ensure that any sanction is appropriate and proportionate to the improper conduct, the seriousness of the improper conduct, any gain made by the licensee as a result of the improper conduct and the amount of any loss suffered or costs incurred as a result of the improper conduct.
Sections 67 to 70 contain detailed provisions dealing with major sanctions. Section 67 provides that a decision by the authority to impose a major sanction will not take effect unless the decision is confirmed by the High Court. Section 68 provides that a licensee may appeal a decision of the authority imposing a major sanction to the High Court. Where the licensee does not appeal the decision, the authority must apply to the High Court under section 69 to have its decision confirmed. Section 70 makes provision for an appeal to the Supreme Court on a point of law.
In addition to a complaints and investigation procedure, an appeals system is also essential. Part 8 provides for the establishment of an independent property services appeal board to hear and determine appeals against specified decisions of the authority. The appeal board will have power to hear appeals against any decision of the authority refusing to issue a licence, declining to investigate a complaint, dismissing a complaint, imposing a minor sanction, refusing to make a grant or relating to the level of a grant paid out of the compensation fund. Matters relating to the composition of the appeal board and its operations, including the procedure for handling appeals, are set out in Schedule 5.
Part 8 also makes provision for related matters including provision for an appeal to the High Court on any question of law arising from a determination of the appeal board.
Part 9, sections 75 and 76, provides for the establishment, administration and maintenance of the property services compensation fund by the authority. The purpose of the fund is to compensate clients of licensees who suffer a financial loss as a result of dishonesty on the part of a licensee or an employee, partner or agent of a licensee in the course of the provision of a property service. Section 76 sets out rules on the payment of compensation out of the fund. Detailed provisions for the administration of the fund are set out in Schedule 6. This part and Schedule 6 are modelled on similar provisions in the Solicitors Acts.
Part 10 empowers the authority to draw up regulations for professional competence schemes for licensees and principal officers of licensees and related matters. Part 11 and Schedule 7 contain provisions governing the provision of property services in the State by persons who hold licences from comparable authorities in other member states. Rights of establishment and freedom to provide services are set out in the European Community treaty. These treaty rights have been elaborated in greater detail more recently in Directive 2006/123 on services in the Internal Market.
A person who has a licence from another member state to provide a particular property service has a right to provide that service here provided he or she is subject to requirements in relation to client accounts similar to those provided for in Part 5 of the Bill. To provide such a property service here, the person does not have to obtain a licence from, or to register with, the authority. Where such a person has his or her authorisation to provide a property service suspended or revoked by a competent authority in another member state, that person will be treated as a person who does not have a licence from the date of revocation or during the period of suspension, as the case may be.
A person who is permitted to provide a property service here on the basis of an authorisation from another member state will be subject to the complaints and investigation procedures, and to the new statutory requirements in relation to letters of engagement, client accounts, and the sale or letting of land.
Part 12, comprising sections 84 to 93, contains miscellaneous provisions. I already indicated that once the Bill comes into force in respect of any category of property service, the provision of that type of property service without a licence will be prohibited. To ensure this prohibition is enforced, the authority’s powers of investigation extend to persons who are suspected of providing a property service or claiming to be available to provide such a service, without a licence. This power is set out in section 84 of the Bill. If the authority considers that a person, other than a licensee, is operating without a licence, it is required to report the matter to the Garda Síochána and the Minister. The authority can also seek a High Court injunction requiring the person to cease the activities concerned. In addition, the authority may initiate summary proceedings against the person concerned.
Section 89 deals with offences and it empowers the authority to bring and prosecute summary proceedings for offences under the Act. Sections 90 and 91 empower the authority and the Minister to make regulations implementing detailed provisions in the legislation. Finally, section 93 provides for transitional arrangements to facilitate the transition from the existing licensing system for auctioneers and house agents to the new licensing regime.
The Bill provides for an appropriate and comprehensive new system for regulating the property services sector. I am confident the provisions set out in this Bill will, when enacted, serve to enhance the standing and image of the sector, provide much improved consumer protection for the clients of property services providers and reassure the public that high standards will be applied and maintained.
Before concluding, I want to refer to the work which is already under way in advance of enactment of the Bill. An implementation group has been established and a chief executive designate has been appointed to advise on practical matters relating to the establishment of the new authority and to prepare for the new licensing system. The implementation group and the chief executive designate have been involved in drawing up the basic organisational structures, systems and procedures required by the new authority. In addition, a number of specific interim initiatives have been taken in advance of enactment of the legislation. For example, a code of practice for auctioneers and house agents has been put in place following consultation with representative bodies and other interested parties.
This code sets out certain minimum standards which must be adhered to in the provision of property services and it incorporates a complaints system which enables complaints concerning non-compliance with the code by those providers who have voluntarily signed up to it to be investigated. A database of licensed auctioneers and house agents has been compiled with the help of the Courts Service and the Revenue Commissioners. All licensees have been invited to subscribe to the code of practice and any licensee who agrees to comply with the code has had such compliance published in a public register. This register was first published in November 2007. Work is ongoing in the preparation of a code of practice for property management agents.
A consumer guide on property services, including the purchase and sale of houses and apartments, and the regulation of property services providers is nearing completion. A programme of education and training for the sector is being prepared in consultation with the industry and institutes of technology. This programme is designed to establish the minimum levels of education and training necessary for property services providers.
An interim website has been developed. Preparations are being made for the enhancement of the website to provide a wider range of consumer information as well as enabling some degree of on-line transaction. Work is ongoing on the development of a complaints handling and licensing database for the authority.
I take the opportunity to refer briefly to an issue which, while not directly related to the substance of the Bill, has been very much in the news of late and continues to generate controversy. I refer to upward-only rent reviews and the difficulties which rigid adherence to such reviews is causing for the retail sector in current economic circumstances. I am very conscious that the most acute difficulties are being faced by those who are parties to existing leases where the traditional arrangement which has evolved is that rent reviews take place every five years on an upward-only basis. These arrangements are not mandated by any legislative requirement. Rather, they represent well settled practice in this area and, as is often the case in such matters, it can be more difficult to effect change where practice rather than legislation is at issue.
I have written to key players in the commercial rental sector urging them to take a flexible and pragmatic approach to rent reviews arising in the context of existing contractual arrangements. I have also suggested that, regarding new leases, consideration be given to moving away from traditional practice in this area and that a more creative approach be taken to the drafting of rent review clauses. It is, perhaps, too soon to say if there is any appreciable shift in market practice in terms of recognising the new reality which prevails within the retail sector. The anecdotal evidence is somewhat mixed. However, it is clear that the new trading conditions which are evident within that sector require an innovative response on the part of all players. In that context, I again urge commercial landlords, in particular, to consider what part they can play in offering support to the retail sector bearing in mind that it is not in anyone’s interest that vacancy rates increase to an unacceptable level because of a reluctance to offer sensible concessions to traders who are in difficulty.
I am aware that there have been repeated calls for legislative intervention in this area. I have not ruled out the possibility of such intervention but I would caution that the scope in this area may be limited having regard to constitutional and legal considerations. That said, I would welcome submissions which interested parties care to make on the issue of upward-only rent reviews so they can be taken into account in my Department’s consideration of the policy issues which surround this matter.
I highly commend the Bill to the House. It is one part of a suite of legislation which the Government has been bringing forward in this area of property services The multi-unit development Bill, which will be published in the next few days, deals with the management of apartments and estates.
Senator Paul Coghlan: I welcome the Minister and I welcome the Bill. I thank the Minister for his detailed outline of what it contains. The memorandum is very detailed, which is a great help. This legislation arose from the 2004 auctioneering-estate agency review group and gives effect to the principal recommendations of that group. The proposal to move from the existing District Court based licensing system for auctioneers and agents to a new statutory authority is very welcome as we have been calling for it for a long time. While I do not speak as an auctioneer, I am one. Despite that, I hope I have an objective view of what is required and I agree with very much of what the Minister has told us.
I welcome the fact that we will have a separate Bill very quickly to deal with the management of multi-unit developments. That is very necessary because there have been many abuses and many of the residents of such places do not know where they stand. We support the objectives of this Bill. Throughout the recent property boom times the provision of property services such as auctioneering, sales, and maintenance have raised questions over the conduct of some service providers. We on this side of the House have consistently called for more regulation of this industry to better protect first-time and vulnerable buyers from unscrupulous practices. While there are many honourable people involved in property services, we have all heard of experiences of bad practices. Those who conduct their business in a transparent and honourable way have nothing to fear from this proposed legislation.
A persistent criticism is that it took so long for the legislation to be published. The Government provisionally set up the national property services regulatory authority in 2005 on a non-statutory basis. A director designate was appointed in July 2006 and it acquired full-time premises in Navan, a staff and annual budgets of hundreds of thousands of euro each year since then. However, the farcical situation existed whereby the authority could not operate because it had no legislative backing. That is being attended to and it is very welcome.
We see this Bill as a missed opportunity to include regulation on property management companies. After the recent boom there are approximately 500,000 people living in apartments and mixed developments in Ireland today. Associated with these developments are approximately 4,600 management companies. There continue to be many problems associated with this sector. Many home owners do not understand that they are shareholders in a management company, why this is necessary or that the management company of which they are a member and shareholder is not the same as the management agents who manage their block or estate.
Control of management companies is not being handed over to their owners. Developers in control of a management company may organise its AGM at a time and location where working residents would not be able to attend easily. In many cases, there are no sinking funds in place.  Owners have no mechanism to seek redress when they are dissatisfied with service provision or the level of fees. There is no legal means of enforcing satisfactory completion of a development.
My party published its comprehensive policy on management companies last summer and we will seek to amend this Bill to reflect many of our policies. While we welcome the published legislation to regulate the property services sector, we take issue with the setting up of a new quango to do it. There is much room for quango consolidation. A national property services regulatory authority should incorporate the Private Residential Tenancies Board, PRTB, the proposed regulation of property services and regulation of property management companies. No doubt the Minister will give us his response and consideration of those when we reach Committee Stage.
It is good to note that the two institutes, the Institute of Professional Auctioneers and Valuers and the Irish Auctioneers and Valuers Institute, generally welcome the provisions of this Bill. However, there are some areas where people in the business feel it is overly prescriptive, especially in a market which is currently under such stress.
Section 2 refers to relevant price range. It states that land valued for sale or letting by a licensee means a price range where the difference between the upper limit of such valuation and the lower limit of such valuation is not more than 10% of such lower limit. I suggest this is too narrow and overly prescriptive given the volatility of prices, both during the boom and in the current recession. I suggest the 10% should be omitted and the section rephrased to reflect a valuer’s reasonable judgment given prevailing market conditions. In fairness to the Minister, he said he provided a little for an out in regard to market conditions. In any event, we can tease that out on Committee Stage.
Section 75(4)(a) refers to the establishment of a compensation fund over a four-year period reaching a minimum of €5 million and maintained by the authority. This could cause hardship and could be a severe financial burden on some practitioners if it is not thought out properly. I suggest €2 million should be the target figure as experience in both institutes has shown that no more than €150,000 has been paid out over 25 years to clients as a result of dishonesty by agents. It should be noted that even in the current very difficult market conditions, there have been no claims on the compensation fund to date. We can tease out those matters on Committee Stage.
The Bill takes care of the fact that many of the recommendations of the review group were considered but rejected because they could be counterproductive. Some of the recommendations put to the review group were off the wall, although maybe I should not say that, perhaps in one instance illegal, unenforceable or simply unworkable. Continuous professional development for members of the profession is very important as are the insurance requirements which I very much welcome.
It is conceivable that people in the Republic could establish a company in Northern Ireland for the purpose of avoiding the legislative provisions of the Bill. The EU services directive is likely to present a major problem for the property services regulatory authority in that a company established across the Border in Northern Ireland, where it would be subject to no licensing requirement and where the PSRA remit would not extend, could operate in the Republic in competition with those complying with the new legislation and paying the substantial additional costs involved in same.
Compliant agents in the Republic will look askance at the Oireachtas and the EU if this is allowed to happen. Surely there are competitive issues at play here if, by doing what is suggested, people were able to save the cost of a licence; save the cost of professional indemnity insurance; save the cost of contributing to a compensation fund and offer no protection for client funds; do not have to achieve educational standards; do not have to undergo CPD; and may escape regulation totally if their base is in Northern Ireland. We will not countenance that. I hope we tease out some of these matters in more detail on Committee Stage.
My attention has been drawn to section 80 which suggests some comfort as regards the protection of clients’ funds. We can leave that matter until Committee Stage.
Many people, who I am sure have been in touch with the Minister as they have been with us, and the Society of Chartered Surveyors have serious concerns. The society has a major concern about Part 6. It sees these provisions as seeking to turn established practice on its head without, in its view, a full awareness of the consequences in the property market which such fundamental changes will have. What is proposed in Part 6 is unprecedented to the point of being experimental. In the society’s view, the measures proposed in Part 6 are not grounded upon a report from a commission or consensus of economic consultants with a particular expertise in the Irish property market or, indeed, any report.
Section 54 requires a valuer and every selling agent to somehow apply formidable foresight in determining, with unrealistic precision, the price for which a property will sell on the open market. The view of the society is that the current terms of section 54 are unreasonable and clearly unworkable in practice. It believes that the failure of the valuer to predict with absolute precision the price for which a property will sell on the open market will be punishable under Part 7 and will also expose valuers to liability from vendors and purchasers. Both auctioneering institutes are concerned about that.
Section 2 defines “advised market value”. A document known as the red book prescribes standards under which chartered surveyors operate. The red book is now recognised practice internationally and is acknowledged by the international stock exchange for the listing of companies, the international banking community and the international accounting standards board. The red book provides a widely recognised and utilised definition of the term “market value”. Uniquely, as a result of this Bill, Irish law will be at variance with international practice as to what constitutes market value. It is significant that the highest international standards in this area do not purport to compel a chartered surveyor to somehow foresee with great precision the exact price a property will achieve upon a sale. The contrast between the internationally recognised best practice as provided for in the red book and the terms of section 54 are striking. The society is very anxious that is brought to the Minister’s attention. I hope it has been in touch with him or his advisers.
Section 54 fails to recognise the task of valuing a property as not an exact science determined through the application of fixed mathematical formulae. We referred to that previously when debating this matter and when seeking legislation.
Section 55 provides that an auctioneer-estate agent must not discuss or publish an estimate of the sale price which is below the advised value. The effect of this provision is to force a vendor to offer his or her property for sale at a price determined by a third party and not at a price or level of his or her own choosing. Obviously this is something against which we must guard. In any event, some professionals feel that freedom for the vendor to have the final say in the level at which his or her property is placed on the market is one of the core elements of a free market. This provision is completely at variance with a person’s established right to market and sell his or her property at whatever level he or she wishes.
I look forward to Committee Stage. We will have a number of amendments and I look forward to the Minister’s consideration and, perhaps, his acceptance of them.
Senator Jim Walsh: Ba mhaith liom fáilte a chur roimh an Aire agus é ag teacht chun an Bhille tábhachtach seo a phlé. I welcome the Minister and also welcome the content of this Bill.
I shall respond to the Minister’s speech, noting in particular his mention of rent reviews. Obviously, the retail trade will lobby to change the long-established practice within leasing of applying upper rent reviews only, a practice which, incidentally, also applies in other jurisdictions. At a time when the retail trade is going through severe difficulties it is understandable that rents should be a matter for serious consideration by such lobbyists as they struggle to remain viable. In addition, I am sure also this matter will engage the major retailers who are making enormous amounts of money in the retail trade in this country, even in the current climate. Most of them are from overseas and would, I am sure, employ lobbyists and suchlike to promote their interests by trying to get this changed.
The Minister’s call is sensible. He is looking for flexibility and a more creative approach in this regard and also looks to landlords to play their part in the current economic climate. There are shopping centres not far from where I live where landlords have sought increases and, in some instances, have got them even in the current climate with the five-year rent review system in place. This beggars belief. I do not know how that was arrived at——
Senator Paul Coghlan: I have negotiated reductions.
Senator Jim Walsh: ——but the consequence of their getting the increases has been that the units have been vacated. Of course that impinges on other businesses and on the viability of the centre.
People must act commercially. My reason for being very reluctant to legislate in this regard and for preferring that rent reviews can be either up or down would be that over the past 30 or 40 years only upper rent reviews have been applicable. In general, this has not been a major problem and has attracted a great deal of investment into the construction sector and property development. I know it is popular now to keep scrutiny on developers and their kind but if we are to attract inward investment into the property sector, particularly in a climate where any such investment is very mobile, we must ensure we do not put ourselves in a very uncompetitive situation vis-à-vis property development investment.
The difficulties we are going through will work their way out, admittedly with much pain for the economy and society in general, but we will come through all this. Therefore, decisions we make must ensure there will be foundations for sensible economic growth in the future. I join the Minister in encouraging landlords and property owners to play their part in the current climate. It is in their interest as well as in the interest of the economy. However, it is possible to be over-prescriptive and we should be slow to respond to interests which might be exploiting the current downturn to their own advantage and, in consequence, perhaps creating significant difficulties for investment and investors in the future.
With regard to the Bill, it is my view that self-regulation does not work and we have seen many failures in this regard. In the legal profession, as much as in any other, self-regulation does not work. For a long time I looked for a move to a regulatory system of the legal profession, including of judges. The Ryan report was strongly debated in this Chamber today. A Senator alluded to the fact the Judiciary was not beyond culpability in some of the instances that occurred whereby youngsters were put into these institutions for very minor offences. One cannot blame the justices for what happened subsequently in those institutions but nobody should be above regulation.
I am disappointed with regard to this matter. I raised it before, having been in Canada with the Joint Committee on Justice, Equality, Defence and Women’s Rights, and proposed to two of the Minister’s predecessors that there should be an independent judicial council, comprising the profession’s own peers, which would look at the conduct of judges. It reflected badly on these Houses and on our system that we had to set up a committee which found it extremely difficult to impeach and dismiss a judge in circumstances where that action would have been highly appropriate. Equally, I saw a situation in which a senior judge had to resign simply because there was not another procedure to deal with the issue, which was one that probably did not warrant his resignation. I appeal to the Minister that we move in that regard.
Concerning these issues, it is imperative that the people who are engaged to occupy such authorities have the commitment, capability and proficiency to discharge those functions adequately and satisfactorily. The Minister mentioned that the CEO of the property services regulatory authority has been designated already. What process was used to appoint that person? Was it done through an independent outside recruitment body? That should be part of what we are now inculcating into the public service system where there is to be open competition and where those who apply can be from either the public or the private sectors. There is enough anecdotal evidence that many of the bodies and regulatory authorities we have established have often been manned and managed by people from the public service. These people may have had some expertise in the area but had very limited experience with which to carry out the new regulatory function. We have seen serious failures in our regulatory system, certainly in the financial sector but also in others, and these continue. If the State feels it is desirable to establish a regulatory authority, there is an onus to ensure those we place in charge of such authorities are of the highest calibre and well equipped to function efficiently and effectively in that area. There should be no ring-fencing of the competition or of the engagement of personnel.
A personal hobby horse over many years has been the local appointments commission. This operates as an old boys’ club. I know of an instance many years ago where a vacancy occurred at the most senior level in a local authority. As soon as the job was vacated it was possible for me to be told who the successor would be, long before competition commenced. That is unacceptable and should be changed and there is recognition at certain levels within the political and public systems that it should be changed. We should move to a situation where those involved in recruiting are experts in the field of recruitment and independent of any internal influences and favouritism.
It is essential the property services regulatory authority operates on a cost efficient basis. We hear a good deal about value for money these days within the public services. We have not been getting it and in many instances we are not getting it at present, with certain notable exceptions. People working in the public service should fully accept the idea of those on enormous salaries looking for demarcation to protect their own little empires is unsustainable and untenable, particularly in the current climate. There are excellent people in the public service, but we need to have a mix of public and private workers in these authorities. That would enhance the operations and ensure effectiveness and cost efficiency.
The property services regulatory authority will be funded by the industry itself. In the case of the Financial Regulator and ComReg, too, for example, one sees the authority getting its funds from the sector it is regulating. I believe that leads to a certain element of incestuousness within the structures. In this context, comment has been made in particular as regards the relationship between the Financial Regulator and the banks. Industry will seek to cultivate good relations with customers, regulators and others as part of doing business. However, it is important the effectiveness of the regulating body is not blunted as a consequence of the close personal relationships that may arise. I should prefer to see the State collecting the licences or the funding for all such regulatory authorities. The moneys could then be allocated, as appropriate, for the operations of particular bodies. Comment has been made, too, at Oireachtas committee level on occasion that because there is so much money sometimes flowing into these authorities, they do not see any necessity to be cost effective. That happens in all organisations, whether public or private. The more money that flows around, the more flaithiúlach people become as regards how it is spent. Therefore we need to be careful in that regard as well.
I expected the management companies attached to apartment and multi-unit developments would have been addressed in the Bill, but I understand and accept this area is to be dealt with separately and there will be legislation in that regard, which is essential. We should examine the multiplicity of authorities with very high levels of salary being paid. It might be interesting to know, for example, what is being paid to the chief executive-designate, from what position he has come and what his salary was there. I have analysed some of the payments made in the various authorities and there has been a tendency to equate some to those of the Secretaries General of Departments, the top tier of management. I do not believe that is necessary or essential. Often these regulatory authorities are essentially functions that can be performed by good administrators who possess the knowledge and work ethic to ensure performance is up to standard. It will be interesting to see how things shape up as regards this authority.
Mortgage brokers, too, might well have been considered under this legislation. To some extent they are governed by the Financial Regulator but I am very conscious of the failures and deficiencies in that area. It is a vital component of the whole structure as regards people buying property as well as the notion of protecting consumers in that regard, and this should be given some consideration. In some instances where the auctioneer is a mortgage broker for the purchaser he or she must get the agreement of the vendor in that regard, and that is a good provision. However, we might need to go further than that.
Overall, the Bill is to be welcomed. The Minister of State has gone through its various aspects very clearly and indicated how the licensing system might operate. It is imperative, as regards training and the maintenance of professional standards that there are proper and effective courses, and these are easily accessible. We will need people in these businesses and it is important the education and training facilities are readily available.
I have a background in the haulage industry and when similar professional competencies were introduced in that area, one saw the necessity for people to have qualified personnel. However, people with experience of running such businesses over many years may well have far more enhanced expertise than those qualifying in various courses and this is something that might be considered. The letter of engagement is important. As regards penalties I welcome very much Part 6 of the Bill, which deals with the maintenance of records. It should be illegal for somebody to have a phantom at the auction pushing the price up and there should be very severe penalties. The penalties for both the vendor and the auctioneer should not be less than the amount excessively extracted from the purchaser.
I do not have time to go into the Bill in further detail, but obviously we will do this on Committee Stage.
Senator David Norris: With the permission of the House, I should like to share time with Senator Ross who has a particular interest in this matter.
I had not intended to speak on this Bill, but rather to leave it to my betters to deal with, people such as Senators O’Toole and Ross who have a long track record in pursuing this issue. However, I was briefed this morning, which was pretty late, by people representing the Institute of Chartered Surveyors and I wanted to put some matters before the Minister for State. I am not necessarily agreeing with them. In fact I do not agree as regards some issues, but I should like to get the viewpoint of the Minister of State.
They are querying whether a distinction should not be made between residential and commercial property as they believe this distinction is not made clear in the Bill. They wonder why in section 2, which deals with “advised market value” the Bill purports to give a new definition of this and in their opinion ignores a document known as the red book, which apparently is accepted internationally, on the Stock Exchange and so on. It gives an internationally accepted definition of the term, “market value”. I am interested in finding out the reason the Minister of State chose to ignore what is, I am told, presumably on reliable grounds, an internationally accepted definition.
They argue that assessing the value of property is not and cannot be an exact science. There has to be a margin of error. I believe the Minister of State recognises that, but again I am very interested to hear his response. The final point relates to section 55, the idea that the vendor should be required to sell at the advised value, and I rather agree with them in that regard. I know what the Minister of State is getting at, namely, gazumping. That is effectively dealt with in other sections of the Bill. At an auction, the value of a property is the limit to which two people are prepared to bid. This measure may erode the market. That is a question mark and there may be a reason for it.
Section 56 refers to the advised market value. We see the phrase advised market value, AMV, in the newspapers every day. These are often patently absurdly low. They are cited as a fishing expedition to get people involved. They gull people and their use is not good practice. I am on the side of the Minister in this instance.
Section 57 makes it illegal for a vendor to authorise a person to make false bids at an auction in order to inflate the bidding. We all know this goes on. It is not fair. It acts against the interest of the purchaser. It is not enough to say caveat emptor. There is responsibility on the part of an auctioneer to act in the interest of the purchaser. I approve of that and it is a pity if chartered surveyors do not agree with it.
Section 58 prohibits a licensee from providing a financial service. This would be a conflict of interest. One cannot be a servant of two masters. I completely agree with this measure.
Of course, a record of all offers must be kept. Otherwise, how is the vendor to know he or she is being properly treated. With regard to complaints investigations and sanctions, the authority must make sure a complaint is made in good faith.
I regret the Minister has not tackled property management companies for, for example, blocks of flats. I know of a number of cases where this is unscrupulously done. All the conflicts of interest adumbrated in the Bill reside in that group. Because developers do not have to vest a management company in the residents until an entire development is sold, they deliberately hold on to one flat. They then secure the services of their own families or friends at exorbitant rents and soak the unfortunate tenants for the cost. That has to be stopped.
The Bill is very interesting. The Minister of State has done good work. However, I have some questions about it and I ask him to come back with the regulation of property management companies.
Senator Shane Ross: I thank Senator Norris for sharing time.
This Bill is the culmination of much work done over a period of time and in that sense, it is welcome. Five or six years ago, Senator O’Toole and I pointed out the chaos that existed in the auctioneering world. This was not remedied by the fact that auctioneers and estate agents had their own regulating bodies. I know of the IAVI and the IPAV and there may be others. They added nothing apart from a fig leaf of protection for auctioneers. The situation was better when there was no regulation whatsoever because the IAVI and IPAV gave a semblance of respectability to auctioneers and created the impression that they were being regulated by bodies which allowed them to go into the auctioneering jungle and do what they liked. They were clubs. They did virtually nothing to discipline their members and allowed them to run riot.
What was worse was that anyone over the age of 18, without a criminal record and able to get an insurance indemnity and put down £12,000, could go to the District Court and get an auctioneering licence. I know this because I did it. I never practised but I got a licence because I could not believe it was so easy. I took a bank draft for £12,000 to the District Court in Bray, a garda came to my house to check that I was alive and in good health and spoke to me for a few minutes, and a judge accepted my application and wished me well in my new career. It is a career which I have not yet pursued but I intend renewing the licence in case things do not go quite as I anticipate in this House in the next few years. That is an indication of the ease with which anyone could practise as an auctioneer. That went on for years uncorrected. It has taken six years, an auctioneering group, committees, bodies and promises from the former Minister, Mr. Michael McDowell, for the Bill to reach this stage. Limited as it is, the Bill is welcome.
I have worries about why the Bill took so long and about certain things it does not contain. We must not underestimate the auctioneering lobby, which is very powerful in these Houses. When I counted in the last Seanad, the number of Members with auctioneering licences was in double figures. No other industry, profession or vocation could claim so many Members of the Oireachtas among its membership. There are huge numbers of auctioneers in the Dáil and on county councils. The political clout of auctioneers and estate agents, who are without qualifications, is formidable. I presume they still do not require qualifications because none is specified in the Bill.
People who could neither read nor write could become auctioneers. This meant they could go off into the property jungle, find a few victims and value, sell or buy their houses with no expertise whatsoever. It also meant they could handle money. One of the most iniquitous practices of estate agents is the taking of booking deposits. A purchaser of a house may give an estate agent a booking deposit of, perhaps, 10% of the purchase price. The estate agent then places this money in a client account. The money is being handled by a person without any qualifications to handle money, or anything else. A booking deposit has no legal standing whatsoever. It entitles the purchaser to nothing. When an auctioneer receives a booking deposit he normally takes the property off the market and puts up a “Sale Agreed” sign. However, if anyone else makes a bid an unscrupulous auctioneer, which a large number of them are, can sell the property to that person and simply hand back the booking deposit. A deposit given at an auction when an agreement is signed is completely different. A booking deposit paid on a private house sale has absolutely no legal standing. If an auctioneer is honourable he will not sell a booked property to anyone else, but he can, and they do. Gazumping often happens in those cases.
It is vital the new authority, which the Bill will establish, sets very high standards, particularly of education and expertise. If people like me, who have not a clue what the value of a house is, are allowed to get auctioneering licences, there will still be unscrupulous and inexpert people in this market. The Bill will have got us nowhere. It simply gives the regulatory body the power to change. We are putting a huge amount of faith in the regulatory body. Furthermore, while I do not cast aspersions on any Minister in this regard, we are making a great leap of faith that the Minister will appoint the right people to this authority. For God’s sake, the Minister should not appoint people from the industry because they all have vested interests. The auctioneering industry has been a complete and utter disgrace in its self-regulation. It has been a case of cowboys regulating cowboys. The discipline imposed upon auctioneers and estate agents by these bodies is laughable. Everyone knows the abuses which took place in this business in good times and bad.
Senator Norris referred to the advent of AMV, advised market value, which has been a slight change for the better but it was preceded by guide prices which were the most misleading prices possible. They were deliberately pitched low to get people into the auction room. They were deliberately pitched at a level such that the suckers would come in and call on their solicitors and surveyors to attend and pay them significant sums to show up at the auction and carry out a survey of the house respectively. However, such people would arrive at an auction only to find out that the guide price was considerably below the reserve price. It was an utterly unscrupulous piece of salesmanship, targeted at gullible people and approved of by the IAVI and the IPAV, the two auctioneering regulatory bodies. There is a great onus on the proposed authority to clean up the auctioneering stable and clean up this rotten system which has existed and been approved by the bodies which have affected to protect the consumer. Such bodies have simply and solely existed to protect the auctioneers when they got into trouble, which happened from time to time.
Let us consider an example of such trouble. In February 2007, shortly after things turned in the housing market and the boom was over — forgive me if I do not have the correct date — there was an incident in which sale prices appeared in the newspapers provided by auctioneers who were members of these regulatory bodies. Instead of providing guide prices which were too low for the purposes of a rising market, the prices of sales negotiated behind closed doors, rather than at auction, were the wrong prices. They were too high. This is all documented. The newspapers published prices which were higher than the actual sale price. The auctioneers were caught out by The Irish Times and they said the practice would stop.
The National Consumer Agency got wind of this, called in the auctioneers and demanded that the practice stop. It was the most outrageously dishonest attempt to mislead the market and to give the impression that the market was not falling as fast as it actually was. Then, instead of any prosecutions following, the National Consumer Agency got an assurance from the auctioneering bodies that such practices would not recur. How in the name of God did this occur? Is there any other sector in which no prosecutions would be taken but those involved would simply be rapped across the knuckles for misleading the public on such an important issue? I simply do not understand it. The clout these people have and the amount they have been allowed to get away with has been scandalous.
I hope the Minister will make serious appointments to the body. He should not appoint auctioneers who have proven to be flawed for decades in their judgments and self-regulation. He should not appoint party political people or country councillors with auction licences, but people who have independent consumer interests at heart. It is very important the Minister does so because if this body is to be serious and to have the credibility that the IAVI and the IPAV never had, it must have independent people putting into practice the measures we have discussed. These include measures on discipline, education and conduct in the auction room such that no fake bids are allowed, and that no mortgage brokers are allowed to be part of an auctioneering business where there is the conflict of interest to which other speakers, especially Senator Norris, referred. I call on the Minister to send the body forward from here with the instruction it will be watched very carefully, that it must not be politicised and that it must act in the interests of consumers and the buyers and sellers of houses.
Senator Dan Boyle: The Property Services (Regulation) Bill follows the establishment in 2004 of the Auctioneering/Estate Agency Review Group. It is hoped the five-year gestation period means that suitable consideration has been given to the contents of the Bill which contain much detail on its intent. It is especially apt that we are considering a Bill of this nature at this stage of the economic cycle and the political history of the country. It deals with the area of property which has cast a sizeable cloud over where the country stands economically and the area of regulation which, for the past decade, has been studiously avoided in many of our systems of administration.
There should be a welcome for the idea that the area of property services needs regulation, as do many other areas of administrative activity in the country. The failures in this area have already been outlined in the contributions of other speakers. There is a difficulty in ensuring effective controls in the purchase of a property and with the practice of gazumping. I welcome the establishment of a regulatory authority and the institution of a licensing system. There has already been a reaction to the proposed measures from those who would have preferred to continue to operate in a more free, unfettered system. The abuses which occurred in the past brought the Bill into being of necessity. The proposed regulatory authority should play an effective role because the legislation has been considered in this House and the other House. Countering the practice of gazumping should be helped by the proposals for the licensing system, but the proposals could be subject to further review.
I have a preference for the system which operates in Scotland, that is, the closed bid system. Under that system once an agreement has been made to sell a property and several vendors have entered an interest in purchasing it, a third party receives sealed bids and a gazump price cannot be achieved. I am unsure whether that should be considered at this stage of the legislation, but perhaps it could be considered following an examination of the operation by the regulatory body in its first years of existence.
The Bill is part of the Government’s ongoing plan to introduce safeguards in the management of multi-unit developments. I express a part interest in this regard because my time spent in Dublin on Oireachtas duty has resulted in my living in one such multi-unit development. The way in which it is managed and how the associated fees are charged for leaves me as a tenant in some confusion and the case is similar for thousands of others in the country. The Bill is especially welcome on these grounds. There is a need to itemise and cost the services provided and to justify those costs. If the Legislature passes the Bill it will have responded to a very real public need.
A side effect of the Celtic tiger boom was the production of a great amount of new property. It also saw a demographic change with people moving to apartment style accommodation from the traditional terraced and semi-detached two or three bedroom houses which had been the norm. We must introduce appropriate legislation as a result.
Senator Ross’s points about the constitution and structure of the board are well made and I hold similar reservations. It is important to have such a regulatory authority, but questions arise about creating a new body when there are already questions about many existing State agencies and the role they play. For example, in establishing this new authority should we not consider the continued role or perhaps a merged role for the Private Residential Tenancies Board? Should we not ask questions about why that board is under the auspices of the Department of the Environment, Heritage and Local Government, while this is under the auspices of the Department of Justice, Equality and Law Reform? It seems to me that we are in danger again of having complementary functions in similar agencies, with different Departments having responsibility for them. This criticism has been ongoing about the lack of joined-up thinking. We must ask those questions in addressing this legislation so that we can achieve appropriate responses. If we do that, the gestation and beginning of life of this agency will be more effective.
Unlike Senator Ross, I believe that while the structure and constitution of the agency will be vital with regard to how effective it can be, the real meat as to its future success will be in the licensing system — what it is being licensed for and how it will be policed as an ongoing licensing practice. If it is an exercise in paperwork and administration, where the practices that exist now are, somehow, sanctioned by the existence of a piece of paper, that is not a valuable exercise. For people to have faith in the regulatory body and the licensing being introduced, this debate and Committee Stage debate must give succour to the idea that the body being established will deal with the real problems.
Another welcome element of the Bill is that not only does it deal with setting up a system where none has previously existed, but it acknowledges there have been widespread abuses in the area. It adds on as part of a new process the facility for an appeal system to question the conclusions reached by the new body, either in the establishment of the licences or in how they are being operated. This is a good principle and is in accord with the principles of natural justice. It allows everyone involved in the process, those involved in the management companies, property owners and those letting such properties, know there is a new means for them to tackle any grievances or deal with ongoing problems. Much of the current difficulties are a result of the fact that those letting the properties feel powerless and abused due to the lack of those systems. If this Bill allows this new system happen, this Legislature will have done a good day’s work.
I welcome the introduction of the Bill and look forward to the remaining contributions on Second Stage. Given its size and complexity, I expect we will have detailed Committee and Report Stages. All Members will join in ensuring it is the best possible Bill to meet a long-standing need that has been let go for too long.
Senator Dominic Hannigan: I welcome the Minister of State. I welcome this legislation. It is the start of the road towards proper regulation, not just of estate agents and auctioneers but also of management agents, and it begins to address issues relating to the management of private estates.
The Bill will put the property services regulatory authority on a statutory footing. This is the body that will license and supervise firms offering a property service. The authority will also set standards and develop codes of practice and administer the compensation fund for those who suffer through a dishonest licensee. I have been asking for such a body to be put on a statutory footing for some time. It is in the interest of consumers to do so and I am glad the legislation is eventually before us.
The need for the Bill has been mentioned not just by Members, but in studies and reviews carried out over the past number of years. In 2004, the Minister for Justice, Equality and Law Reform set up a review group to look at the auctioneering profession. It found that the current regulatory system was outdated, felt that property management agents should be required to hold a licence and recommended that there should be an appropriate system to control entry into the profession. The group recognised concerns about pricing — particularly misleading guide prices — gazumping and gazundering. It recommended that a compensation fund be set up.
There have been other reviews, particularly on the management of estate developments in multi-unit developments. These developments typically consist of new apartment blocks with communal areas, halls and lifts. Management of estates also includes the management of common green areas in more traditional housing estates such as estates made up of detached or semi-detached houses. These reviews were carried out by the Law Reform Commission and the National Consumer Agency.
Both of these bodies have produced comprehensive reports with recommendations on how the situation with regard to multi-unit developments can be improved. These reports recognise that quite often the management companies and agencies exert excessive control over the maintenance of the developments. They highlight the difficulties this can pose, including the charging of exorbitant management fees to homeowners and, in some places, the absence of a long-term maintenance strategy. The reports recommend changes to improve the situation, in particular, giving homeowners more rights and more control over their homes and the setting of management charges. The Bill goes some way towards addressing these concerns and is quite detailed.
I intend to concentrate on the issues of the licensing of agents, the pricing of dwellings by estate agents and the existence of management companies in developments. The Labour Party may put down a number of amendments on Committee Stage.
The proposal to license agents is welcome. The Bill will make it an offence to offer a property management service without first having a licence, with a penalty of one year in prison and-or a fine of €5,000. The severity of this punishment should deter anybody from setting up or trying to set up an illegal practice, which is good news for the consumer. I am a little disappointed by the fact that there appears to be little teeth given to enforcing the code of practice to which licensed estate agents and auctioneers must adhere.
The code of practice for property service providers has already been developed and it sets out minimum standards to be followed by auctioneers and estate agents. However I understand — I would like the Minister of State to confirm whether this is the case — that if auctioneers do not follow the code of practice, they will not be civilly or criminally liable. If that is the case, would the Minister be prepared to make the penalty stronger?
I am pleased to see that the Bill makes an attempt to deal with the issue of gazumping. We all know of stories, the veracity of which cannot be checked, whereby when a buyer puts in an offer, another potential purchaser appears and makes a higher bid. The difficulty is that people do not know whether this other bidder is a real purchaser or a phantom bidder put in by a rogue estate agent to increase the sale price. It is difficult to tell if this practice is widespread, but there is some evidence that it has happened in the past and enough concern about the issue for it to give us reason to worry. A gentleman who visited my office in Ashbourne some months ago was convinced that when he put a bid on a property, a phantom bidder was put in place by the agent. This led to him having to pay at least an extra €20,000 on the purchase price, which represented approximately 10% of the cost of the property.
I am glad the Bill will make this practice an offence. A prison sentence of a year seems appropriate, but I ask the Minister to reconsider the proposed fine of €5,000 because that is quite small in the context of the potential gain a rogue estate agent might make, which could be many times that and which, over a number of occasions, could amount to several hundred thousand euro. The proposed fine is on the low side and I am signalling now that I propose submitting an amendment in that regard. People who engage in the practice of gazumping are low-lifes and should be driven from the industry. The fine is only approximately the same price as a first-class ticket to New York and is not sufficient to deter people from this practice.
On the matter of how to find out where gazumping occurs and how to prevent it, the gentleman who visited me has worked out a methodology for preventing it from happening and I will ask him to send the Minister of State some details on that for his consideration.
On the issue of management companies and agents, I note the legislation deals specifically with management agents and I recognise that the issue of management companies will not be taken care of until another day. I look forward to debating that legislation when it is introduced. I know of many families who must pay excessive charges for the upkeep of their estates. I know of families in Ashbourne who have paid for the maintenance of their estates, but have found that common lifts are not being taken care of. Their management agents are complaining about a lack of funds. When I visited an estate in Dunboyne last week, I spoke to people who are confused about having to pay €1,000 a year to have the grass cut in the communal areas. These are real issues. People feel they are being ripped off in the absence of regulation of management companies and agencies. I am glad that the management companies Bill appears to be on its way. It has to be said that many management agencies and companies do a fantastic job, although a few bad eggs need to be tackled. I hope the legislation before the House will facilitate that. We need to ensure that management companies are controlled by the residents of estates. The terms “management company” and “residents association” should be interchangeable. They should become one and the same thing.
We need to regulate the maintenance of open areas in estates that have been taken in charge by local authorities. I understand that the local authority parks department maintains the common areas of estates in the Dublin City Council and Fingal County Council areas. As there is no parks department in other counties, including County Meath, residents associations and management agencies have to find the money to pay for external contractors to maintain the common areas. It could be argued that this is an additional form of taxation for residents living outside the Dublin and Fingal areas. We need to examine the issues of equality that arise in this regard. Last year, the Minister, Deputy Gormley, said he would consider the possibility of establishing parks departments in counties such as Meath. What is his current thinking in that regard?
I welcome this legislation. It increases the rights and protections enjoyed by consumers in their dealings with estate agents and auctioneers, which is good news. I look forward to debating the forthcoming legislation on management companies in this House in the near future.
Senator Larry Butler: I would like to share time with Senator MacSharry.
An Cathaoirleach: Is that agreed? Agreed.
Senator Larry Butler: I welcome this legislation, which sets new standards for the auctioneering and property sector. Everybody will agree that the Property Services (Regulation) Bill 2009 is long overdue. It provides for the replacement of the current system of regulating auctioneers and house agents with an updated system of regulation of all property service providers, including auctioneers, letting agents and property management agencies. It also provides for the establishment on a statutory basis of the new property services regulatory authority, which will control and supervise property services and ensure they are provided to improved standards.
The introduction of legislation of this nature will increase the confidence of those who use property services. Not only will service providers have to meet the standards that will be set out, but the consumers of these services will also be entitled to such standards. This is long overdue. The authority will investigate complaints relating to the provision of property services and adjudicate on them. A property services compensation fund will be established to compensate those who suffer financial loss as a result of dishonesty. We all know that sharp practices have been a feature of the property business for many years. I am being generous when I refer to certain activities as “sharp practices”. This legislation will ensure that new standards apply to the benefit of consumers. That is vitally important.
The main function of the proposed property services authority will be to operate a comprehensive system of licensing of the providers of property services, including auctioneers, letting agents and property management agencies. The authority will enforce the standards outlined in this Bill. I have reservations about the establishment of new bodies like this one. We complain all the time about the proliferation of quangos. There are almost 1,000 of them in Ireland. Perhaps it would be more appropriate for the functions of the proposed property services authority to be given to the existing Private Residential Tenancies Board. We need to avoid duplication. I think my proposal for administering the system is worthy of consideration.
It is important to emphasise the need for action to be taken in respect of the open spaces beside multi-unit developments, such as apartment blocks. I appreciate that this legislation does not relate to such matters. A new Bill is to be introduced to regulate the sector in question. We are all aware of the type of abuse that is taking place. No regulations have been introduced to date. Every multi-unit complex has a different property management organisation with its own rules and regulations. There are no overall standards. It is important to take action in this regard as soon as possible. In some cases, people have to pay €3,000 or €4,000 per annum for property services in their estates. One might not have to pay that much each year for one’s mortgage. If the Government decides to introduce a property tax, it will have to reflect on the position of those who are already paying property service charges. It would be almost impossible to impose a further charge on those living in multi-unit developments. I welcome the introduction of better standards, which are needed. I welcome the Bill and I thank the Minister of State for bringing it to the House. We will get another opportunity to deal with certain aspects of it.
Senator Marc MacSharry: I thank Senator Butler for sharing time. I welcome the Minister of State, Deputy Curran. I am glad the Property Services (Regulation) Bill 2009 has been published and brought to the House. I will make some brief points on it. At the outset, I would like to declare an interest. I am a licensed and practising auctioneer. I wholeheartedly welcome this long overdue attempt to regulate the property services market. In recent years, Senator Ross has consistently argued that such regulation is needed. As a relatively recent entrant to the market, I have observed the need for this legislation over the past few years. If nothing else, it will protect the many auctioneers who go about their business in an appropriate fashion. I accept that there have been many abuses and I am glad that this legislation includes a variety of measures to deal with that. I am sure many improvements to the Bill, which is to be welcomed in general, will be suggested on Committee Stage.
In recent months, I received an anonymous e-mail from someone who thought I would be happy to learn that a survey had found that the two least popular, or least trusted, professions in the world were politics and auctioneering, in that order. I am unlucky enough, or perhaps lucky enough, to be involved in both professions. Legislation of this nature is long overdue. It is needed to improve the industry, which has faced many difficulties in recent years. While it will be particularly helpful from the point of view of consumers, it will also assist the many auctioneers who go about their business in an appropriate, legal and honourable fashion.
The property services authority, which has been established on a non-statutory basis, has already issued a code of practice. I am glad to report that many auctioneers are already following that code. I look forward to seeing the authority make further improvements to the code so that the level of compliance of auctioneers can be further enhanced. The auctioneering profession needs to enhance the service it provides in a way that gives the public confidence. I reiterate that auctioneers want to go about their business and make a living while providing a service they can stand over. They want to be sure they are being true to the wishes of consumers. There are several issues to discuss when we get the opportunity to go through the Bill section by section. At a glance I noticed in section 2 the definition:
Any valuer would set out to achieve that and even much less than a 10% variance. In the current market, however, we might have to reconsider the 10% limit because it is not an exact science at any time and especially not at the moment. This will be one of the major difficulties for the National Asset Management Agency, NAMA, to get an accurate valuation. It may be a little too prescriptive given the volatility or non-existence of a property market.
I fully agree with, and support the establishment of, the compensation fund. The hope is to build it up to €5 million. I do not know whether that is necessary as €2 million or €3 million may suffice in the interim, to be reviewed every couple of years. There are other improvements we can make.
More than anything else, however, I hope this legislation will provide the appropriate safeguards to bring back a level of public confidence in the auctioneering profession which is an honourable one. There have been abuses and bad eggs and we need to root them out. This legislation represents a good start in that process. I wholeheartedly welcome it and look forward to making a few more recommendations on Committee Stage.
Senator Eugene Regan: I take issue with Senator Walsh’s statement in which he attacked the Judiciary. That was entirely inappropriate. Our Constitution sets out the separation of powers and it is incumbent on every Member of this House and the Lower House to respect that provision. Senator Walsh overstepped the mark when he attacked the Judiciary.
An Cathaoirleach: I was not present at the time. I will look up the Official Report and if it requires adjustment, I will ask the Senator to apologise.
Senator Eugene Regan: I appreciate that. It is easy to condemn an entire business and profession. There are rogues in every business and there should be legislation, sanctions and enforcement procedures to ensure they are held to account. That is the basis for the demand for this legislation to regulate the profession. If there is a failure in the system, it is a failure to provide the necessary legislative base to deal with these issues. There is no point throwing up our hands and saying it is easy to get an auctioneering licence without qualifications. If that is the case and the legislation is inadequate, this should have been dealt with. It is a failure of Government that it did not legislate to deal with issues and problems that arose from time to time.
The delay in this legislation is unfortunate. It is an anomaly that we have proceeded to establish the property services regulatory authority provisionally and appoint a chief executive when there is no legislation in place to enable that person to carry out his functions. This formula seems to apply also to the National Asset Management Agency, NAMA. It is important that legislation is put in place and the Houses of the Oireachtas are consulted and play their normal role in establishing legislation before Government policy is pursued and activated.
The 2004 report of the auctioneering-estate agency review group rightly points out that “the current regulatory system set up by the Auctioneers and House Agents Act 1947 (as amended) is outdated, inappropriate and inadequate for the present day market in Ireland”. This should have been amended a long time ago.
The scheme set out in this legislation seems top heavy. Can we afford this type of legislation and regulation or is there a simpler formula? We are establishing a new body, the property services regulatory authority, but there is already the Private Residential Tenancies Board. Do we need a completely new body to perform a straightforward function when there is legislation to impose requirements for professional qualifications, maintain standards and specify the offences and sanctions? Do we need the elaborate procedure of setting up a new authority and an independent appeals board when there is still reference to the courts? One cannot avoid the courts. There will be litigation. The structure may be top heavy, too elaborate and costly.
I will not go into the detailed provisions of the Bill because my colleague has already ventilated some of them. The Bill outlaws important issues concerning bidding at auctions which we all know from experience have existed. The chartered surveyors however have made points which seem to have some validity and require re-examination of the relevant articles in the Bill. We can reserve our right to put forward detailed amendments in this regard. The Bill’s objective is valid. There needs to be detailed regulation of those who qualify for a licence in the profession and a system put in place to maintain standards whereby clear breaches of those standards are forcefully sanctioned and people are held to account. For that reason we welcome the Bill but will submit amendments on Committee Stage.
The Minister for Justice, Equality and Law Reform, Deputy Dermot Ahern, mentioned in introducing the Bill, although it is not part of the Bill, the difficulties for the retail sector of rigid adherence to upward only rent reviews. We have known about this problem for a considerable time but what is the Minister doing about it? He hints that he may consider legislative intervention. This is an example of the Government’s tardiness in going about a job and dealing with issues as they arise. It should not put them on the long finger. The fact is there are difficulties in the property market affecting the retail sector, as we all know. Addressing this specific issue would not require elaborate legislation. While issues arise over existing contractual arrangements, it is urgent that the Minister act in this area. Simply to mention the issue and hint at possible legislative intervention without proposing solutions and acting on the matter is insufficient. It is important the Minister proposes some initiative in this area and outlines his prescription for dealing with the acute problem in the property market in the current economic climate. I will not at this stage propose specific amendments on the Bill and will confine my comments to the general observations I have made.
Senator Joe O’Toole: I welcome the Minister of State, Deputy Peter Power. I compliment the advisers in the Department on their very extensive and difficult work. Much work has gone into the Bill. It has been very slow coming and Senator Ross and I have been shouting for it for the past five or six years. The Cathaoirleach spoke on this issue on a number of occasions.
It is important to consider the genesis of the Bill. It has been produced at a time in which auctioneers probably have a worse reputation than trade unionists or politicians, which is pretty bad. I grew up in an area in which every family had what it described as its solicitor and undertaker. If a member of the family died, one knew which undertaker would be looking after the burial. Similarly, families had their own auctioneer. Those were the times in which auctioneers were part of and served the community. Unfortunately, these auctioneers were replaced by new business-minded auctioneers who were looking at the bottom line such that when one wanted to sell one’s house they suggested a value well above the market value in order to grab the work. Then the issue of gazumping arose, in addition to all the other issues that reduced the tolerance for and trust in auctioneers and estate agents.
I recall one occasion on which I spoke about this in the House. When I finished speaking, two Fianna Fáil Senators on the Government side approached me. There are many auctioneers on that side of the House, as Senator Ross stated. The Senators who approached me shared my views and told me how they themselves had been treated appallingly in that some of the estates of relations had been bought by relatives of auctioneers and appeared to have been sold for less than the market value.
I very much welcome certain provisions in the Bill, some of which are really important. I appeal to the Minister and his advisers to be flexible. There are provisions that need to be tightened up and others that are superb. I have a background in regulation and governance and have been involved with a number of boards in this area. I can see what is very good in the Bill and can also recognise problems that need to be dealt with.
Section 63, on investigations, is the best I have seen. Having considered legislation on the Medical Council, the Irish Auditing and Accounting Supervisory Authority and the Teaching Council, I believe this section is comprehensive and clear. The legislation describes information as confidential. Rather than having the section deal with the general issue of confidentiality, it deals with information and refers to confidential information. This causes a considerable problem very often for boards. Many people believe every bit of information they receive is confidential if they receive it from a board. Section 63 focuses on this, which is important.
I have a query on the requirement in Schedule 3 that investigations be held at all times in private, or “otherwise than in public”. This should be re-examined. Some discretion should be allowed to the inspector on occasions where the public good would clearly warrant it. Many people are asking what investigations are being conducted into the banks but the fact of the matter is that the groups carrying out investigations dare not say publicly they are doing so because they might be in breach of legislation. In some cases, the public good would be served by at least saying such investigations are taking place. The provisions in the Bill are very solid in this area.
The weakest area of the Bill concerns membership of the authority. I could easily track how the discussion on membership evolved. The first membership requirement is that one have “knowledge or experience”. This is a very low bar. If it were “knowledge and experience”, it would be better. Reference is made to “matters relevant to the functions of the Authority”. These matters should be spelled out. Reference should be made to one’s consumer background, education or qualifications and to one’s background in governance or ethics. I am not proposing these requirements specifically but arguing we should not give a Minister unfettered discretion to appoint anybody he likes. Appointees should be invited before the appropriate committee of the Houses, but not the Supreme Court as in Washington, to explain why they will do a good job. It would not be a beauty contest or involve marking out of ten but would allow one to determine whether the nominees are okay.
I invite the Minister of State and others to consider the membership of the Teaching Council, the accountancy oversight body, the Medical Council and the various legal boards in this regard. The worst thing one could do with the new body is fill it with auctioneers; it would inspire no trust or confidence. I do not speak for auctioneers because I have been their constant critic but believe the second worst thing one could do is not appoint any auctioneers. The only way one can fulfil both criteria is by requiring that there be a certain percentage of auctioneers that should not exceed a specified level, be it 30%, 40% or 50%. That is crucial. I cannot accept the regulation of any profession if the regulators are not required to include some members of the profession. That can be done.
I accept Senator Regan’s point that the work of another body could be done by the one proposed in this Bill to prevent the setting up of another. Regardless of which approach we take, I ask that there be some auctioneers or estate agents on the board. We must trust them in this regard. A board should have members with on-the-ground experience but who are not entitled to overwhelm it. This issue should be considered.
I have a question in which nobody other than me will be the slightest bit interested and to which I want a comprehensive answer. Section 12 states membership is not allowed in respect of Members of the Dáil, Seanad and European Parliament and members of local authorities. This inflames me. At a time when we are trying to defend our public image, I want to know why this is the case. This kind of provision arose at a time when many boards were answerable, in cash terms, to a House of the Oireachtas, for example. One could not be responsible to the House and be a Member thereof at the same time.
The Minister of State will not be allowed to answer my question but if he traces the history of the provision, he will find that nobody in the Department of Justice, Equality and Law Reform asked that it be included. That Department submitted the heads of the Bill and sent them to the draughtsman, after which a draft was returned. It was at this point the provision was included. I know this and could write the script on it. The provision should not be included unless there is an absolutely sound argument to the contrary. The membership provisions are vague and flawed. They may be deliberately vague but that is not acceptable. That day is gone now and I ask the advisers to talk sternly to the Minister about this. People should be there on their merit and know why they are there, just as if they were on the Medical Council, in which case they might be representing consumers, patients, or medical professionals.
Other provisions I strongly welcome are section 18, which refers to a code of practice, and section 10 which refers, among other things, to ethical standards. These are important. It is also important to underline the fact that they are not written into the Bill, which is as it should be. They should not be spelled out in the Bill as they will grow through experience and will be built upon over time by the authority. I am in favour of that.
I am appalled to find that old chestnut, in section 23(2), that the chief executive of the authority shall not question or express an opinion on the merits of any Government policy before a committee of the House. The authority is required to appear before a committee of the House, and if I ask the chief executive a question, he or she cannot give a view that includes an opinion or question about Government policy in the area. What kind of accountability is that? We are saying we will not allow TDs, Senators, councillors or MEPs to have anything to do with it, but when the members of the authority appear before us they cannot answer questions in any way that is critical. When did we get so sensitive in ourselves? Do we not take hassle every time we go in front of a camera or behind a microphone? Is it not part of our game plan to cope with such things? It is not good enough.
I am pleased with the section dealing with advised market value, which is important. This value is required under the section to be reasonable. I defended the word “reasonable” yesterday during our discussion of another Bill. I like the word because judges know what it means when they hear the context. With the way things are at the moment it is impossible to value a house. I asked ten or 20 people how this could be done. The business of valuing has changed. In any small town in Ireland, when I was a youngster, it was easy enough to put a value on a house. A bungalow is on a half-acre site, which in this area is worth X. The cost of the materials to build the bungalow is Y, and the cost of profit and wages in building the house is Z. Thus, the value is X plus Y plus Z, or at least that was the broad thrust of it. However, all that has gone out the window. For the last 20 years one’s house was valued by the auctioneer’s comparison with what the house next door or down the road sold for last year or will sell for next week. This section is important and I welcome it and commend the Department on bringing it in.
I do not know whether anyone has referred thus far to section 58 dealing with financial services. This is an important provision and the one that will hurt auctioneers and estate agents the most. Under this section, an auctioneer or estate agent who is selling me a property is not allowed to provide me with a financial service attaching to it, such as a loan, mortgage or insurance. I used to have a thick file on this whole business. In many cases a house was sold to the underbidder because — I knew this but could not prove it — the underbidder was given a mortgage or similar supports.
This is a good Bill which fills an important gap. It needs to be tightened up and I ask that the Minister be open to this. The Minister of State, Deputy Curran, will admit that when he was taking the Charities Bill 2007 it was strengthened immeasurably during the long debates we had in the House. We can do the same with this Bill. I am not approaching this — nor will anybody else — in a party political way. It is a question of making the legislation work. Senator Feeney, who is sitting opposite, served on a professional board in the past and she may share my view that we need to have some members of the profession on the regulatory body, while ensuring they do not overwhelm it, and that everyone else should be there to perform some function, perhaps because of an ex officio position.
I could go on at some length about the generality of the Bill but we will deal with aspects of it as we go along. I welcome the legislation and will support it in general. However, like Senator Regan, I express the hope that the Minister of State will be open to amendments as we go along.
Senator Geraldine Feeney: There must be a telepathic connection between me and Senator O’Toole, because I was in my office packing my bag to go home when I realised I had never heard a man speak so much sense. I picked up my bag and ran to the Chamber to support him in his comments, particularly with regard to other professional bodies and how they are run, and how new legislation has changed the whole outlook of those bodies. First, however, I welcome the Minister of State, Deputy Curran. I am delighted to have a few minutes to speak on the Bill, which is long awaited but is excellent legislation. I am looking forward to every Stage as it goes through the House.
The reason I came here was that in a former life I sat on the Medical Council and on the nursing board, An Bord Altranais. Both of these, at the time I sat on them in 1998-99, were made up mainly of members of the profession. Lay representation on the nursing board was two out of 26, while on the Medical Council it was four out of 24. I am on record as saying in the House that where there is a dominance of professionals on a body, it is not run professionally or properly. As a lay person I have heard it said, and perhaps I have said it myself, that bodies are referred to as old boys’ clubs and as being “sewn up” and that unions have a special position. However, new systems such as the one introduced for accountants by the Minister for Health and Children, Deputy Harney, when she was Minister for Enterprise, Trade and Employment, are excellent. Accountants whom I know have grasped the system and it is working effectively. They welcome it and are proud they were the first profession to come in under the new system.
I was on the Medical Council when the talk was that there was to be a new Medical Practitioners Act to replace the one that was almost 30 years old, and the doctors were worried that we were throwing the baby out with the bathwater. The lay majority must be retained. Senator O’Toole and I were on the same side when this was going through and there were not too many people in the medical profession who were happy with us because they were not in favour of it. However, it is now working effectively and the council has majority lay representation.
I came here to support the point made by Senator O’Toole when he said we must have members of the profession on the board. We need to have auctioneers and estate agents sitting on the board. When I was on these medical boards, I could not have worked on fitness to practise issues without the expertise of the doctors and nurses in showing me, the lay person, how practice should be conducted. This is the point Senator O’Toole was making. We must have professionals. There is no point in bringing in fabulous legislation such as this if we are to leave them out. I emphasise to the Minister that this must be considered. To me it is a must. We are blindfolded without professionals because no one knows better how their practice works. However, I would suggest we bring in other disciplines around them. The Medical Council is a good example of how this can be done. There are representatives of medical related disciplines who are not doctors, including nurses, pharmacists, chiropodists and dietitians. There are many people associated with the area of property, including those of Senator Regan’s profession, which is the legal profession, as well as architects and others, who could join the board. Senator O’Toole’s point was that we must have auctioneers on the board and I agree with that.
I look forward to Committee and Report Stages. I am sure the amendments will be fruitful. There is a great deal of interest in this Bill. We have all called for legislation in this area. The profession should not be afraid of the legislation. It should take encouragement from other professions that have been changed that are now satisfied with how their boards are run.
Minister of State at the Department of Justice, Equality and Law Reform (Deputy John Curran): I thank Senators for their contributions to the debate. It is clear the Government’s objective of high standards in the provision and delivery of property services, which the proposals in the Bill are designed to achieve, are broadly shared on all sides of the House. I have listened for the last hour and a half to the contributions of Senators and they broadly support the Bill’s objectives. Some detailed points were made that will be clarified on Committee Stage. It was encouraging, however, to hear the general welcome for the thrust of the Bill.
Senator Regan was critical of the delay in the Bill getting here. It is important to note that in parallel with this, an implementation group has been established so when the Bill is enacted, the process will move swiftly instead of things happening in isolation and on a step by step basis.
Part 2, Schedule 7 seeks to give effect to our obligations under the EC treaty and the services directive while ensuring that users of property services are adequately protected. Concerns have been raised that these provisions may be open to abuse. It is important to emphasise that a person from another member state will not be allowed to provide a property service here unless he has an appropriate licence or authorisation from another member state.
Among the most important provisions in the Bill are those in Part 5 on the protection of client moneys. A person who has a licence or authorisation from another EU member state will not be permitted to provide a property service on the basis of that licence or authorisation unless he is subject to the requirements for client accounts similar to those set out in Part 5 of the Bill. This provides an important protection for clients and users of property services provided by persons from other member states. All providers of property services, whether licensed by the authority or by a similar authority in another member state, will be subject to the complaints and investigations provisions set out in the Bill, as well as the provisions for letters of engagement and the sale and letting of land.
While the provisions for the property services compensation fund and professional indemnity insurance will not apply to such persons, they will be required to include information on those issues in the letter of engagement which they will be required to give to all clients. Clients will therefore be able to make an informed decision as to whether or not to engage such a person.
Senator Walsh asked about the chief executive designate. He was appointed following an open competition run by the Public Appointments Service. The salary scale attaching to the post is that of a principal officer, higher scale.
Senators have raised concerns about provisions in the Bill for the advised market value of land. These provisions give effect to a key recommendation of the auctioneering estate agency review group. The purpose of these provisions is to avoid a situation where unrealistically low prices are quoted for land, particularly houses and apartments, to attract potential purchasers for the property concerned in the hope of increasing the eventual price for the property. The Bill applies to auctioneers, not to surveyors.
Standards will mainly be set out in statutory regulations with sanctions and penalties applicable to breaches rather than to the codes of practice. Codes will be used for ethical standards, where prosecution would be more difficult. As far as possible, standards will be in accordance with regulations rather than codes.
The Minister is aware there have been repeated calls for legislative intervention in upward rent reviews. He has not ruled out such intervention but he cautions scope in this area may be limited having regard to constitutional and legal considerations. The Minister would welcome submissions that interested parties would care to make about the issue of upward only rent reviews so they can be taken into account in the Department’s consideration of policy issues surrounding this matter.
Senators O’Toole and Feeney made some interesting points about the membership of the authority and I will convey those to the Minister. The involvement of local authority members has arisen before but the views expressed today will also be relayed.
I thank all those who contributed to the debate. The Minister will consider the points raised in the context of possible amendments on Committee Stage.
Question put and agreed to.
Committee Stage ordered for Tuesday, 26 May 2009.
An Leas-Chathaoirleach: When it is proposed to sit again?
Senator Diarmuid Wilson: At 2.30 p.m. on Tuesday, 26 May.
Senator Dominic Hannigan: I wish to raise the need for an additional school in the Johnstown area in Navan. The surrounding area is a demographic time bomb. Meath has grown by 200% in the past ten years, with much of that growth concentrated around the towns and villages in the county. Navan, the county town, has seen significant growth in recent years, predominantly along its boundaries, where the Johnstown area is in the south-east quadrant.
Many of those who have moved there have young children who are currently at primary school and, while there is no huge issue with the availability of primary school places, although there are issues about class size, there will be a problem at secondary level in a few years. All studies indicate significant numbers of children will require access to post-primary education and this is a cause of anxiety for many parents. They are worried that when the time comes to send their children to second level schooling they will not be able to find places for them, or their children will have to move to other parts of Navan or further away to other villages. In view of the fact we can see that a problem will occur in a few years, I hope the Government and the Minister’s Department have examined this issue and have some plans for how to deal with this time bomb.
Can the Minister confirm that the Department is planning a new school in the Johnstown area? If so, has a site been identified? Has the Department met with officials from Meath County Council or Navan Town Council to establish the future population levels in the area? Where does the provision of a school sit regarding the Department’s prioritisation list?
Minister of State at the Department of Finance (Deputy Martin Mansergh): I am taking this Adjournment matter on behalf of my colleague, the Minister for Education and Science, Deputy Batt O’Keeffe. I thank the Senator for raising the matter. It is a real problem, particularly in the greater Dublin area, including adjoining counties. This affords me the opportunity to outline to the Seanad the process being utilised to ensure there will be adequate accommodation in schools at primary and post-primary level in all parts of the country.
The forward planning section of the Department is in the process of identifying the areas where significant additional accommodation will be required at primary and post-primary level for future years. Factors under consideration include population growth, demographic trends, current and projected enrolments, recent and planned housing developments and the capacity of existing schools to meet the demand for places. Having considered these factors, decisions will be taken on the means by which emerging needs will be met within an area.
The forward planning section of the Department utilises the latest GIS technology to assist in planning school requirements in the future. The geographical information system contains information on all schools in the country, at both primary and post-primary level. A range of demographic information is linked spatially to the relevant schools and this allows the Department to map various demographic scenarios at local level. Typically the demographic information will be from the Central Statistics Office, the General Register Office, the Department of Social and Family Affairs, An Post’s geo-directory and information supplied by local authorities through development plans. Growth projection figures are applied to the existing population with a view to assessing future requirements at primary and post-primary level.
As a matter of course, there is ongoing liaison between the Department and local authorities to establish the location, scale and pace of any major proposed developments and their possible implications for school provision. In this context the forward planning section has made a submission to the draft development plan for Navan in which the land requirements for additional post-primary provision were outlined, based on projected population figures provided by Meath County Council.
Officials from the forward planning section recently met with officials from Meath County Council and among the issues discussed were the future post-primary requirements for Navan town. Two sites have been reserved in Navan as part of the current six-year development plan to facilitate the provision of additional post-primary schools should they be required. Given the demographic projections, Department of Education and Science officials are satisfied this will be adequate to cater for post-primary requirements in Navan for the lifetime of the current development plan.
The delivery of any additional post-primary school facilities in Navan will depend on the pace and scale of housing developments in the area. The forward planning section will continue to monitor planned developments and population growth in the Navan area to ensure school accommodation needs are provided in a timely manner. I thank the Senator for raising this matter.
Senator Dominic Hannigan: I thank the Minister.
Senator Ciaran Cannon: Approximately 16 years ago the people of Loughrea were given a very strong indication that the Government of the day was willing to co-fund the provision of a public swimming pool in that town. At the prompting of the Government and local Fianna Fáil representatives at that time the people of the town engaged in a comprehensive fundraising campaign. I bought one of those £100 tickets, as they were at the time, for me and my family. Some 16 years later the pool remains undelivered and we have arrived at a point where Fianna Fáil uses this as some sort of trump card to be played at every election, local and national, in the Loughrea area, constantly promising that this pool is about to be delivered or, at the most recent general election, that is has been delivered.
In February 2001 Deputy Noel Treacy announced that his Government colleague, Deputy McDaid, then Minister for Tourism, Sport and Recreation, had approved the appointment of consultants by Galway County Council for the preliminary design and construction of the proposed pool. Deputy Treacy also said he was “looking forward to a swim in the warmer waters of the pool in the years ahead”. In the weeks running up to the May 2007 general election another announcement was made that the swimming pool had been approved and that €1.7 million was waiting somewhere, about to be allocated for the pool. A very large billboard was erected on the site of the pool proclaiming the pool had been delivered. Deputy Treacy said he was “delighted to have achieved a positive conclusion for this very important project”. I stress the word “conclusion”.
Two years later, not one cent of that €1.7 million has been delivered to the community of Loughrea. We have been fobbed off over and over again with pathetic excuses about legal difficulties that have arisen. If somebody says he or she was happy to have achieved a “positive conclusion” for a project, one would assume all these legal issues had been resolved back in 2007. I cannot understand why this money still has not been allocated two years later.
We have the legal knowledge available to us in the Houses of the Oireachtas to draft a Bill to guarantee every loan in our State banks and have it passed in 48 hours. If the political will and the intent to deliver this money and pool to the community of Loughrea existed, it would have been done many years ago. I do not believe the political will is there to do that. There is no intent to deliver a pool at any point. The excuses given were simply a smoke screen for an unwillingness on the part of the Government to deliver this money. I hope the Minister, Deputy Mansergh, has something that may encourage me to believe otherwise, but I doubt it.
Deputy Martin Mansergh: I prefer the colder waters of the Atlantic off the coast of Galway, but I appreciate that schools and inhabitants need a local swimming pool. If I had not been keeping up to date with recent developments, Senator Cannon’s speech left me in no doubt as to what side of the political spectrum he stands on, and I wish him the best on his transition. I thank the Senator for raising this matter and for giving me the opportunity to outline the position in relation to the Loughrea swimming pool proposal.
As Senators are aware, the local authority swimming pool programme is administered by the Department of Arts, Sport and Tourism. The programme provides grant aid towards the capital costs of new public swimming pools or the refurbishment of existing public swimming pools provided by local authorities or other bodies where the application for capital funding is supported by the local authority. The current round of the programme closed to new applicants in July 2000. An application was received from Galway County Council for the Loughrea swimming pool before that closing date. The programme provides for maximum grant aid of €3.8 million per project.
There are four principal stages which must be undertaken by a local authority in developing a swimming pool project. These are a preliminary report including feasibility study, contract documents, tender stage and, finally, construction. Local authorities may not proceed to the next stage of a project until prior approval issues from the Department. Grant aid is formally allocated when the tender is approved. The Department’s technical advisers, the Office of Public Works, which I have the honour to head, evaluates each stage.
The policy since 2000 has been to give priority to the completion of the 57 projects within the current round. Of these 57 projects, 43 have been completed and open to the public, three are under construction, all of which have been grant aided. Eleven other projects are at various stages of the programme. One is at tender stage, seven are at contract documents stage and three are at preliminary report stage.
Cumulative grant expenditure by the Department under the programme from 2000 to the end of April this year is €134.3 million and this grant aid has leveraged total investment of €383.5 million in public swimming pool facilities. Under the National Development Plan 2007-2013, €184 million has been allocated for the provision of public swimming pools under the local authority swimming pool programme, with €12.4 million provided in the Revised Estimates for 2009.
The Department has completed and published a value for money and policy review report of the local authority swimming pool programme. The report examined, among other things, how the programme has worked to date and what changes are required to ensure its effective and efficient delivery in the future. The report was published in 2008. The terms and conditions of any new round of the programme will be devised taking into account the recommendations of the report.
However, given the current budgetary constraints, it is not intended to launch a new round of the local authority swimming pool programme at this time. The matter will be reviewed again later this year.
The Department has been in discussions for some time with Galway County Council regarding the grant aiding of a swimming pool in Loughrea. The current proposal is that Galway County Council would supply a site to a local hotel developer who would construct the pool and in return would make the pool available to the public in Loughrea for an agreed number of hours per week and at entrance prices comparable to other public pools in Galway. As part of this plan, the council applied to the Department for a grant of €1.7 million from the local authority swimming pool programme towards the construction of the pool. Consideration of this proposal is at an advanced stage in the Department and my senior colleague, the Minister for Arts, Sport and Tourism, Deputy Cullen, hopes to make an announcement about the project soon.
Again, I thank the Senator for raising this issue and assure him the Government will continue to build on its record of achievement in upgrading the stock of local public swimming pools in this country. The reply I gave does not justify the unqualified pessimism of the Senator’s contribution.
Senator Ciaran Cannon: I understand this €1.7 million is coming from the local authority swimming pool programme pool of funds. The Minister of State said that given the budgetary constraints, it is not intended to launch a new round of the swimming programme at this time and that the matter would be reviewed again later this year. He said Galway County Council has been in discussions with the Department and that it hopes the €1.7 million will be allocated. Are they two distinct issues?
The Minister of State also said consideration of this proposal is at an advanced stage in the Department. In May 2007, Deputy Treacy, the Minister of State’s party colleague, told us the money had been sanctioned and that he was delighted to have achieved a conclusion for this project. How can something confirmed as concluded in May 2007 continue to be at an advanced stage in May 2009?
Deputy Martin Mansergh: The answer to the first question is that they are two distinct issues. I was talking about the programme. There is a question of finishing off the existing programme, which includes Loughrea. However, I was also dealing with the question of when there might be invitations to apply for a new programme. The fact there is no new programme this year has no implications whatsoever for the Loughrea swimming pool proposal which is under the existing programme and is in the pipeline.
With the greatest possible deference to the Senator and his constituency colleague, Deputy Treacy, I am giving an official and, I believe, authoritative departmental reply. As the Senator will know, Deputies, even when they are officeholders in other Departments, can give informed or optimistic views on the prospects for something. The Senator would be entitled to take seriously and literally what I have said, regardless of what may have been said in the past.
Senator David Norris: I welcome the Minister of State, Deputy Roche. I raise a human rights matter which involves a distinguished parliamentarian and diplomat, Mr. Remzi Kartal, who is a member of the Kurdish National Congress. Mr. Kartal visited the Oireachtas Joint Committee on Foreign Affairs with a delegation of Kurdish representatives some years ago. The Minister of State may have met him at that time. I met him and have a photograph of the two of us in Leinster House.
Mr. Kartal was granted political asylum in Belgium in 1994. I am sure the Minister of State will remember the events preceding this because a number of duly elected Kurdish members of parliament were imprisoned by the Turkish Government. It was a most extraordinary invasion of parliamentary rights. In any case, he was elected as a representative of the Democracy Party in Turkey.
Mr. Kartal was arrested in Spain in March of this year. I say as a kind of codicil to that arrest, which was flagrantly illegal, that a colleague of his, Mr. Eyyüp Doru, was also placed under similar restrictions by the Spanish authorities.
Over the past ten years, Mr. Kartal has been working for peaceful reconciliation for the Kurdish people and he has had complete freedom of movement around the states of the European Union. In March of this year, he went to Madrid to take part in a very ancient Kurdish festival called Newroz which is widely celebrated in the area of Turkey where Kurdish people predominate. He was arrested in Spain and is now subject to the possibility of being forcibly extradited to Turkey at the request of the Turkish authorities. This would be illegal under international law and I ask the Minister to protest strongly to the Spanish and Turkish authorities.
Following his arrest, he was taken to prison, held there for a couple of days and then released on condition that he must stay in a named residence, remain in Spain and report twice a week to the police. The same conditions operate in the case of Mr. Eyyüp Doru.
In this case, Turkey has abused the powers of Interpol, a matter which should also be looked at. In addition, the UNHCR has warned that in the eventuality of the return to Turkey of these two gentlemen, they face the strong possibility of torture. That reinforces my view that this possible procedure is completely illegal.
Why has this happened? Part of the reason may well be because there is a personal friendship between Mr. Erdogan, the Turkish Prime Minister, and Mr. Zapatero, the Spanish Prime Minister. Even though I have some respect for both gentlemen, that is not sufficient reason to infringe the law.
Furthermore, the dossier produced in the Spanish court contained material that was used four years ago in Germany when a similar approach was made to the German authorities and, in consequence, Mr. Kartal was arrested, brought to court and tried. The Minister of State should be aware that the German court threw out those accusations stating they were a fabrication without any substance. A German court found that to be the case but now the Spanish are using the same entirely discredited material to facilitate the inhibition of movement and the possible extradition of Mr. Kartal.
Everything is made considerably worse by the fact that the Spanish Cabinet has taken a decision to extradite. On Friday, 8 May, it approved the extradition of both Mr. Kartal and Mr. Doru to Turkey. That is a most disgraceful abuse of the courts and of international diplomacy and is a violation of the fundamental rights of this distinguished former parliamentarian and diplomat. I ask the Minister of State to intervene on his behalf.
Minister of State at the Department of Foreign Affairs (Deputy Dick Roche): I thank Senator Norris for raising an issue which in turn raises a number of subsidiary matters. As the Senator is aware, Mr Remzi Kartal, a pro-Kurdish political activist and a former member of the Kurdish Parliament, was arrested in March this year by the Spanish police on foot of an international arrest warrant issued by the Turkish authorities. Mr. Eyyüp Doru was arrested at the same time. The case of both men is being dealt with by the Spanish High Court, the Audiencia Nacional, and the men are on provisional bail, as the Senator acknowledged.
I understand that on 8 May the Spanish Government approved the continuation by the Audiencia Nacional of judicial proceedings in respect of the extradition request by the Turkish authorities for the two men and that the case continues to be under consideration by the Spanish High Court. The situation may not be as final as the Senator indicated in his concerns.
Senator Norris will appreciate that it would be entirely inappropriate for the Government to seek to intervene in, or comment on judicial proceedings under way in another EU member state. We would resent any such intervention or interference with our courts. Therefore, I am in a bind and not in a position to make a statement on these individual cases.
However, I wish to update Senator Norris and the House on efforts under way to promote the Kurdish identity in Turkey and the role the EU is playing in this regard. This is relevant given that Senator Norris has mentioned a warrant that was reviewed and rejected in a German court.
It is estimated that more than half of all Kurds live in Turkey, with 15 million people of Kurdish ethnic origin residing there, mostly in the south east of the country. The Government’s concerns about the human rights situation in Turkey, including the position of people of Kurdish origin, are raised regularly in our contacts with the Turkish Government, including through our embassy in Ankara.
We are also concerned about the security situation in the south east of the country, which was improving gradually until 1999 although it has worsened in more recent years. This follows the resumption of violence by the PKK, a Kurdish separatist organisation founded in 1984 with the goal of forming a separate state of Kurdistan. The PKK appears on the EU list of terrorist organisations.
One of the key elements of the EU’s enlargement negotiations with Turkey is to ensure legitimate anti-terrorism and security measures do not undermine the full respect for human rights——
Senator David Norris: I am sorry but I really must interrupt the Minister of State at this point. I object in the strongest possible manner to this rubbish being placed on the record. Mr. Kartal, whose matter I have raised today, has no association whatever with the PKK. This material could be used to smear him. I suggest that this reply be withdrawn.
Deputy Dick Roche: I shall give Senator Norris——
Senator David Norris: At least the Minister of State must make clear there is no such connection.
An Leas-Chathaoirleach: I cannot stop the Minister of State from giving his reply. I have no control over the content of his speech.
Deputy Dick Roche: I ask Senator Norris to bear with me. No such implication was made nor could such an inference reasonably or rationally be taken. I was simply referring to the reality that the PKK is such an organisation. Certainly, there is no evidence in my file or in the material I have that might be produced to suggest that this gentleman has specific associations——
Senator David Norris: Therefore it has no relevance to the debate.
Deputy Dick Roche: With respect to the Senator, if he bears with me he will see there is relevance. One of the key issues in respect of the EU enlargement negotiations with Turkey is to ensure legitimate anti-terrorism and security measures are not used to undermine full respect for human rights and the fundamental freedoms as set out in the European Convention on Human Rights. As Senator Norris well knows, this is a specific part of the Copenhagen criteria which the EU applies. Any state looking for membership must meet it and the Turkish authorities know that full well.
In this regard, the number of cases taken against political parties in Turkey is of concern to the EU and to Ireland, and this issue has been raised regularly by the EU in the context of enlargement negotiations with Turkey. The progress report on Turkey prepared by the European Commission issued in November 2008 noted that “the current legal provisions applicable to political parties do not provide political actors with an adequate level of protection from the state’s interference in their freedom of association and freedom of expression”. In addition, the report stated that “the legal provisions on political parties need to be amended and brought into line with the case law of the European Court of Human Rights and best practice in EU member states”. Ireland fully supports the recommendations set out by the Commission in this report.
In March 2009, the European Commission for Democracy through Law of the Council of Europe, also known as the Venice Commission, presented an opinion to the Council of Europe Parliamentary Assembly on the dissolution of political parties in Turkey. This report has been welcomed by the Turkish Government which is undertaking political and legal consultations to adopt its recommendations and bring Turkey fully into line with the European Convention on Human Rights.
We welcome that Turkey has made some progress in recent years in adopting wide-ranging political and legal reforms. Important legislative measures on human rights have been introduced and enacted aimed at strengthening the enforcement of human rights and protecting the cultural rights of all citizens, including those of Kurdish origin.
Reforms have seen the first Kurdish language classes begin in private schools and some programmes in the Kurdish language have been broadcast on state television and radio channels. At the 47th meeting of the EC-Turkey Association Council held in Brussels on 19 May 2009, the EU welcomed the launch of television and radio broadcasting in Kurdish nationwide 24 hours a day. In addition, the EU encourages Turkey to take further measures to enhance cultural rights in practice and lift remaining restrictions, especially in respect of the use of languages other than Turkish in local broadcasting and political life and when accessing public services. The EU also urges Turkey, in line with best practice in member states, to adopt appropriate measures to ensure cultural diversity and promote respect for and protection of minorities in accordance with the European Convention on Human Rights and with the principles laid down in the framework convention for the protection of national minorities. We continue to urge the Turkish Government to resolve any of the outstanding issues that relate to minority rights, including those that relate to Kurdish identity, and in co-operation with our EU partners we will closely monitor developments in the region through our embassy in Ankara.
I return to the matter of the Senator’s intervention. Nothing in this reply is in any way intended to pre-judge the position of this man or to suggest that anything other than due process must be applied properly in his case.
Senator David Norris: I thank the Minister of State for his clarification but virtually all of his reply was irrelevant. It was a type of history lesson, accurate enough as far as it went. I am sure the Minister of State knows only too well that dragging the PKK scent across this trail is not at all helpful and is completely wrong-headed. I accept his clarification but obviously it was unnecessary to have included that reference which could have been damaging. I very much regret it.
On to the substance of the matter, this man is being treated illegally. One hopes the Spanish courts will behave in the appropriate manner. I am not suggesting any interference with the Spanish courts but rather a diplomatic move as an indication to the Spanish Government that we are taking an interest in this as a matter of human rights and as a matter of considerable significance. It is astonishing that he should have been arrested on substance that has been shown to be nonsense in the German courts.
I am asking whether the Minister would be prepared to make some discreet, if necessary, diplomatic move with regard to the Spanish authorities, signalling to the ambassador here that there is considerable concern at Government level about this issue. We are entitled to be concerned as co-members of the European Union, since European police machinery has been misused in this affair. Indeed there is nothing whatever to stop a signal being sent to the Turks. They are not involved in a court case. The UNHCR is concerned about the possibility of torture. This man is innocent and the charges were thrown out in the German court. I am asking whether the Minister will make some move towards signalling to both the Spanish and the Turks that this situation is unsatisfactory, is being monitored and will continue to provoke demonstrations such as the one taking place as we speak, which I am going to join outside the Spanish Embassy this afternoon.
Deputy Dick Roche: I thank Senator Norris for that. I will ensure the appropriate embassies as well as the permanent representation to the Council of Europe have copies of the transcripts and are aware of the concerns.
Senator David Norris: I appreciate the Minister of State’s initiative and I thank him very much.
The Seanad adjourned at 2.45 p.m. until 2.30 p.m. on Tuesday, 26 May 2009.