Alice-Mary Higgins (Independent) | Oireachtas source

Taken together, sections 11 and 12 provide extraordinary discretionary ministerial powers that I have not seen in almost any previous legislation. We discussed section 11 at length. It allows a Minister to give direction in writing for any purpose relating to any matter referred to in the legislation or any other enactment - basically, that means anything ever referred to in any law anywhere - and the implementation of any policy or objective of the Minister or the Government within a specified period.

Section 12, on which I did not focus too much on our previous discussion, is also of concern. While somewhat more limited, section 12 makes provision for the Minister to issue guidelines to the Agency. It is somewhat more specific than the wide-open, anything-goes approach taken in section 11.These guidelines relate to really important issues. They relate to guidelines on the codes of practice for governance, to guidelines on the policy guidance and changes in policy, and to guidelines on changes and objectives on the corporate plan under the agency, so the Minister can give guidelines that actually change the objectives of the agency and what it does. Again, when we hear about the agency being independent these are things that mitigate against that independence of the agency to be able to properly act and function.

I must indicate my intention to table an amendment on Report Stage. Where the Bill says "the Agency shall have regard to ... any direction given or guidelines issued by the Minister" this does not give the agency any discretion to decide that perhaps the guidelines issued by the Minister are not appropriate and do not fit with its independent remit, or do not fit with what it believes it needs to deliver in terms of its objectives. While "the Agency shall have" means it needs to do whatever the Minister is giving it in terms of guidelines, the Minister only "may" - not "shall" - "publish guidelines ... in such manner as he or she considers appropriate.". Will the Minister of State clarify this? It will affect how I approach amending this section on Report Stage. Is it the case that the Minister "may publish" the guidelines or may not publish the guidelines so that we may have guidelines that are issued to the agency in respect of those important matters such as, objectives, code of practice and policy or changes in its policy? Is it the case that the Minister may or may not publish those guidelines or is it simply the case that the Minister may publish those guidelines in a particular manner? I want to give the benefit of doubt to the Minster and this is why I withdrew the amendment but I want clarity from the Minister of State today on whether it is the intention that any guidelines produced under section 12 would be published? One could read it both ways, that it is simply a matter that the Bill does not want to specify how they are to be published - although I believe it should specify how they are to be published - but not whether they are published. Will the Minister of State clarify that point for me on section 12?