Joanna Tuffy (Dublin Mid West, Labour)

My question relates to the advice the Minister says he received from the Attorney General that the Dublin Docklands Development Authority could be brought under the remit of the Comptroller and Auditor General by way of ministerial order. However, the Minister wrote to Deputy Allen, Chairman of the Committee of Public Accounts, last September indicating that amendment of primary legislation is a matter for the Dáil and that amending legislation was required in this instance. The Minister for Finance had already written to Deputy Allen in July 2009 to state that since 2005, the powers under section 21 of the 1993 Act to amend the Schedules to that Act had not been available to the Minister. He explained that this arose from a Supreme Court judgment which found that delegated legislation cannot make, repeal or amend any law and to the extent that the parent Act purports to confer such a power, it will be invalid having regard to the provisions of the Constitution. That statement is black and white and there was no qualification of it by the Minister for Finance or by the Minister, Deputy Gormley's, subsequent letter.

There are other issues that arise in terms of the ability of the Comptroller and Auditor General to require that special reports are carried out, as the Minister mentioned earlier. If the Minister were to introduce legislation - which, according to him and to the Minister for Finance less than a year ago, is the correct way to proceed - that legislation would have to do much more than merely bring the DDDA within the powers of the Comptroller and Auditor General. If the DDDA is merely added to the Schedule of the existing Act, the Comptroller and Auditor General will only be able to look at the DDDA into the future; he will not be able to examine retrospectively past decisions of the authority. That is the legal advice received by the Labour Party. In the case of the DIRT inquiry, for example, it was necessary to ensure the legislation enabled the Comptroller and Auditor General and the Committee of Public Accounts to examine the banks' past treatment of bogus non-resident accounts. The same must apply to the DDDA if precedent is anything to go by. Does the Minister have any advice in that regard?

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