Brendan Howlin (Wexford, Labour)

This matter was discussed in general terms on Committee Stage. The Deputy has raised a very important point. In the formulation of his amendment the Deputy is putting forward a concept rather than a legal framework. The idea of losing the confidence of the Government being the determination of losing one's pension would be a very risky position. For instance, one adviser who is working for the Government says he loses the confidence of the Government twice a week but I am sure he gets it back again twice as quickly.

A loss to be imposed on people who acted improperly is not a matter to be dealt with in pension law. What is intended by the section is whether, in a case where a person has defrauded money, this could be recouped from his or her pension. I am advised by the Attorney General this is a practical and possible way to address the issue. The imposition of the loss of a pension on a person for a nebulous reason such as stated, for losing the confidence of the Government, has a number of fault lines. The first is that it would politicise the process. There were Governments and Ministers in the past who might easily have lost confidence in people because they were very authoritarian in their views. That is not the way a public service should be constructed. While I understand what the Deputy intends, this is not the way to do it.

I took the advice of the Attorney General because this is an important issue and to see if it could be addressed in any way. She pointed out a number of difficulties in dealing with it as suggested by the Deputy. It would impose a penalty which would trespass on the rights of the courts who alone can impose a significant penalty.

I refer to case law which is relevant to this matter. The 1997 Lovett case reflects this point. It related to a teacher whose retirement on grounds of ill-health was precipitated by the discovery of serious financial irregularities. The teacher's superannuation scheme contained a forfeiture provision relating to misconduct and because there was demonstrable misconduct, it was decided that a forfeiture of pension would be an appropriate sanction. That matter was tested in the courts where it was determined that such an administrative action was not enforceable. A recoupment of an overpayment of wages or pension or of a debt is recoverable, but a sanction would not be constitutional.

For those reasons, while I understand the motivation of the Deputy's amendment and I am sympathetic to it, I cannot accept it. I do not blame the Deputy but is it clear it is not crafted in a manner that is enforceable and in general terms there are constitutional difficulties in trying to establish significant administrative sanctions which would be outside the normal role of the courts and their reserved role under the Constitution to determine wrongdoing and to impose sanctions.

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