Michael D Higgins (Galway West, Labour)

The issues that arise in this regard are quite serious. Obviously if Members can resolve this issue, which should be done either by clarification or by vote, one would be able to approach what the Minister seeks to achieve in other sections in a much clearer fashion. Certainly, the case for this amendment that has been made by my colleague, Deputy Burton, is very important. It is simply a fact that clarifications have been given by the highest court in the land on the use or departure from Article 15.2.1° of the Constitution. This is the reason it is appropriate to discuss Deputy Burton's amendment under section 2, the interpretation section, as it goes right to the very beginning and seeks to clarify what precisely is the intent of the legislation, as will be proposed specifically with regard to section 53. In turn, Members should be well aware of section 53's sweeping powers. The section proposes to give the Minister an extraordinary power to override any other instrument and I will outline the issue. It states:

The provisions of this Act, and any order made under this Act, have effect notwithstanding anything in—

(a) the Companies Acts, the Building Societies Act 1989, the Credit Union Act 1997 or any other enactment,

(b) any other rule of law or equity

(c) any code of practice...

However, as an ordinary legislator in this House, albeit one who has been here for a long time, may I set out the current position and where the difficulty arises? For example, Members need to discuss significant amendments to the basic consolidated companies legislation. I suggest that legislation in this regard is quite urgently needed. It would have been desirable, and this is a positive, rather than a partisan view, that after November 2008, Members had been provided with research papers and a good discussion on, for example, the role and responsibilities of non-executive directors. Moreover, as a long time has elapsed, I would like to return to the companies legislation pertaining to professional supports and requirements.

Some changes have been made in recent years with regard to the auditing function and so forth, in which a departure from traditional practices has created the capacity for the disaster in which we now find ourselves immersed. However, Members should imagine being engaged in such a review and that one then encounters as passed section 53 of this Bill. The question immediately would arise as to what precisely does the Minister seek to override. Is there a boundary to it in legislative terms? Does it extend beyond the range of this particular Bill and everything that is mentioned in it? This would have been helpful but I make this point in an attempt to tease out the current position in respect of this provision. Unfortunately, section 53(a) provides a citation of other Acts such as the Companies Acts, the Building Societies Act and the Credit Union Act 1997. Consequently, the provision is going beyond the boundaries of what is sought with regard to this legislation.

The Title of the Bill, namely, the Credit Institutions (Stabilisation) Bill, may be enigmatic. Certainly anything that might happen may be more stable than anything of which Members have had recent experience, but the legislation does not resemble the comprehensive bank resolution legislation about which Professor McHale of NUIG wrote last spring. While I wish to be fair, this Bill pertains to the role, competence and entitlements of the Minister to deal with the particular mess as it arises in respect of particular financial institutions.

Another problem arises beyond the constitutional one posed by Article 15.2.1° and the possible compromising of legislation that is beyond the boundary of this particular proposed legislation, namely, the role of the Minister into the future. This is not a personal criticism of this Minister but is a criticism of any Minister of the day. The difficulty is that this legislation appears to deepen the connection between the Minister, as Minister for Finance nominated and agreed by the House as a member of the Government, and the banks. This is a difficult question because the Minister should be able to answer but, at the same time, the Minister to an extent will be almost constrained to defend what has happened. The Minister could reply to that point by stating he will have powers through this legislation to state, for example, that he sought A, B or C but it was not complied with. The legislation may be in existence but non-compliance or the absence of sanctions for such non-compliance will then immediately arise.

I must make a small admission which is that I have written previously about the role of the Department of Finance and Minister for Finance anyway and I wish to provide a tiny example in this regard. Off the top of my head, I refer to section 24(1)(1) of the Ministers and Secretaries Act 1924, which has been comprehensively abused. For example, as a former member of the Cabinet, I recall that one could go to Cabinet and could succeed in an argument with one's Cabinet colleagues. One could reach consensus or, if consensus was not available, some kind of compromise agreement, only to find that this retained power under the aforementioned section would leave one withering on the vine in respect of the approval that was required with regard to, for example, the staffing of a meritorious institution, some of which were associated with my period in office. I remember getting approval for a particular activity and purchasing a premises in the west of Ireland, namely, Turlough House, only for it to be left closed to the public for 18 months because it was pointed out to me that one could not get permission for the approval of staff and so forth. This issue as to what should be the competence of a Minister and of a Department and so forth is a matter for another day. I make this point lest people state that I always am against the Department of Finance. I draw a distinction between the Department and the Minister of the day.

Incidentally, I suggest to the Minister that he needs a protective distance between himself and the functioning of the Department. Moreover, he needs a protective distance between himself and those to whom regulation functions have been delegated. However, his real difficulty lies in him stating that nothing anyone else may legislate, order or do in this area or even outside it will count. He also, in the long list of internal matters pertaining to ministerial orders as to function within a banking institution, leaves himself wide open to the suggestion that had the Minister wished it to be different, he should have specified it. He is moving too close to the institution in respect of performance whereas, under the Constitution, what he is being asked to do is to provide accountability. They are different things and one could state, for example, that the Minister is not in the role of a defender of the faith with regard to what happens in financial decisions but he is in this Chamber to show how the public interest is facilitated. I suggest that while I strongly support the amendment to section 2 tabled by Deputy Burton, it would be very wrong to pass section 53 in its rather vague and widely defined way and Members should vote on that.

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