Fergus O'Dowd (Louth, Fine Gael) | Oireachtas source

I note that the Deputy's amendment reproduces the provisions of section 4 as it stands. That section contains a standard provision requiring that orders made by the Minister be laid before the Houses of the Oireachtas and may be annulled by a resolution of either House within 21 days. The practice in legislative drafting is that where an Act gives a Minister a power to do something that expands the scope of the Act, such as extending the list of entities to which the legislation will apply, the power shall be exercised by way of a regulation or order made by the Minister. It will be provided that such regulation or order must be laid before the Houses of the Oireachtas. In the Bill, orders are required to add to the list of bodies to which NewERA may provide advice, to add to the list of sectors where NewERA may develop investment proposals, to add to the list of bodies within the NDFA's remit and in respect of a number of instances in Part 5 which relate to the State Claims Agency. The provisions generally expand the scope of the Act and it is appropriate that they should be laid before the Houses and that the Houses should have the opportunity to consider them. This is normal practice for secondary legislation.

Acts may also contain provisions allowing Ministers to issue executive instructions on the administration of a function under such Acts. There is no set term for such executive instructions but the word usually used is "direction". The word "instruction" is also used in the Bill in relation to certain provisions being carried over from the existing National Development Finance Agency Act 2002. There is no convention that directions and instructions are published. Directions can be given under a number of sections in the Act. The Minister for Public Expenditure and Reform may issue directions to State authorities on the financing of public investment projects. The Minister for Finance and the Attorney General may issue directions to the NTMA on the management of legal costs while the Minister for Finance may also issue directions on the final reports of the NPRF Commission and the NDFA. These are part of the normal executive functions of Ministers. They enable Ministers to do their jobs relating to the bodies under their aegis. It would be completely inappropriate that every such direction should have to be laid before both Houses and be subject to annulment for a period of 21 sitting days.

There are two notable direction provisions. Sections 42, 43 and 47 have to do with directions given by the Minister for Finance to the agency to use ISIF funds to invest in financial institutions. As I said on Committee Stage, this is the provision that was used to recapitalise the banks with NPRF funds during the financial crisis. We are carrying the provision over as a sensible precautionary measure. At this juncture, we have no wish, intention or expectation that the power will ever be used. However, if the circumstances ever arose, it must be possible to take decisive action and inject money rapidly into the sort of crisis or time critical situation that we have seen in so many countries in the last decade. It will, of course, be open to the Minister for Finance to have such an intention debated in the House as time allows. I expect that this is what would happen except in the most extreme circumstances. Governments must have the ability to act quickly and decisively when the need arises. Such directions may often relate to one-off transactions. In such circumstances, I do not see how a provision that a direction may be annulled without prejudice to anything previously done under the direction could be applied. With regard to publication generally, directions on recapitalisation may well include commercially sensitive elements as between the Minister and the NPRF. On that basis, there should not be a blanket requirement to publish.

There is a further power of direction in the Bill in section 19(5) whereby the Minister for Public Expenditure and Reform may give directions to NewERA as to the performance of its functions. The Minister must publish such directions as soon as is reasonably practical in such manner as he or she considers appropriate. The most obvious place is the website of the Department itself. The proposed amendment would cut across the provision by requiring the direction to be laid before the Houses with the possibility of annulment within 21 sitting days. Again, these directions are part of the Minister's executive functions. The power of direction will allow the Minister to ensure that advice prepared by NewERA would take account of issues the Minister considers important. I cannot see how it is the role of the Oireachtas to police how the Minister seeks advice up to and including annulling a direction he or she issues to ensure that the advice meets his or her needs.

The issue of directions was debated at some length on Committee Stage and, having reflected on it, we are satisfied that the provisions about directions are measured and appropriate. As stated on Committee Stage, directions will be subject to the Freedom of Information Act and the provisions built into that legislation to ensure the commercial and other interests of the State are protected.

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