Pat Carey (Dublin North West, Fianna Fail)
Link to this: Individually | In context

I move:

That the order of the Dáil today concerning Report and Fifth Stages of the Finance Bill 2010 be discharged and the following motion be substituted therefor:

The resumed Report and Final Stages of No. 18 shall be taken today and, notwithstanding the proceedings yesterday, shall resume on amendment No. 3 on recommittal, and the proceedings thereon shall, if not previously concluded, be brought to a conclusion at 10.30 p.m. tonight by one question which shall be put from the Chair and which shall, in relation to amendments, include only those set down or accepted by the Minister for Finance.

The Government is proposing to take the unusual step of discharging this morning's order out of courtesy to Members due to the unavoidable lack of notice when the original order was decided by the House this morning. The new motion proposes that amendment No. 3 be recommitted to allow further discussion on the amendment if Members so wish.

Séamus Kirk (Louth, Ceann Comhairle)
Link to this: Individually | In context

Is the recommittal proposal agreed to?

Eamon Gilmore (Dún Laoghaire, Labour)
Link to this: Individually | In context

No. In more than 20 years in this House I have never seen a proposal from the Government to pull a procedural stroke such as is being attempted today. Yesterday evening amendment No. 3, which was proposed by Deputy Burton, was passed by the House. Discussion then proceeded on amendment No. 6 and I understand Deputy Burton was in possession in respect of that amendment.

This morning an Order Paper was circulated which provided for, among other things, a guillotine on Report and Final Stages of the Finance Bill, but made no reference to returning to amendment No. 3. The Taoiseach, however, in what was a sleight of hand, when moving the Order of Business moved a proposal that the House shall resume on amendment No. 3, notwithstanding anything which transpired yesterday. There have been exchanges about that matter and discussions between the Whips in the interval. The Government Chief Whip has given the same proposal which was read out by the Taoiseach but which was not circulated on the Order of Business before the commencement of business today.

I submit to the Ceann Comhairle that what is proposed by the Government Chief Whip is out of order. Our business is governed by the Standing Orders of the House. The manner to deal with the Order of Business is set down in Standing Order 26, which provides that every sitting is governed by a printed Order Paper. The Taoiseach has the right to determine the order in which Government business appears on each day's Order Paper and may also propose arrangements for sittings and the taking of that day's business. However, today's Order Paper clearly states No. 18 is the Finance Bill - Report Stage, resumed on amendment No. 6. That and only that is the item of Government business on which a Government motion can be made in respect of the ordering of business; in other words, the Finance Bill resumed on amendment No. 6.

Yesterday's amendments were yesterday's business. I ask the Ceann Comhairle to defend the rights of the Members of this House. There is no provision in the Standing Orders of this House for the motion which the Government Chief Whip has just proposed. The Government Chief Whip and the Taoiseach in the ordering of business are confined to making proposals in respect of the business which appears on the Order Paper. The business which appears on the Order Paper is the Finance Bill, resumed on amendment No. 6. There is no procedure, Standing Order, rule or precedent for moving a motion which departs from the business which is set down in the Order Paper. There is certainly no precedent, and we will not go along with the setting of a new precedent in this House, whereby business which was transacted yesterday and on which the House made a decision, can be revisited the following day simply because the Government wants to do so and vote it down again. If that were to happen, we would be in a situation where, on any given day, if the House votes on a matter, the Government, because it did not like the result on day one, can come in the following day and propose a motion such as that proposed by the Government Chief Whip. This will set an entirely new, unacceptable, undemocratic precedent for this House and we are not having it.

Richard Bruton (Dublin North Central, Fine Gael)
Link to this: Individually | In context

The Minister for Finance said the intention of the Government was to oppose this item of business when it was discussed last night, and it went through inadvertently. In seeking to correct it, it is vital that we do not create a precedent which undermines the rights of the House. While the Government is trying to mend its hand, which I understand, it seeks to do it in a way which undermines the rights of this House. When a decision is made in this House, for whatever reason, the Government cannot, by sleight of hand, come in and pretend the decision was never made. Such an act would undermine the rights of this House. It is a dangerous precedent which we should not establish. I understand the Whips considered other options which would have dealt with the problem, from the Government's point of view. For example, a brief Bill could have dealt with the element which the Government wished to remove or it could have gone to the Seanad to make arrangements.

The Ceann Comhairle and Members, irrespective of whether they operate under the Whips to support the Government, need to make sure we protect the rights of this House. We have already seen the most senior independent public servant, namely, the Ombudsman, draw to our attention the failure of this House to properly hold the Government to account and conduct its business. It would be extremely ironic, the day after the Ombudsman was so critical of this House, that we would see a further erosion of the manner in which we do our business, diluting again the accountability of Government for decisions and the influence of those who are elected to the House.

We should revert to one of the Government's original proposals to deal with this matter. I cannot see why it would withdraw the amendment because it is a fairly innocent amendment which can do no harm and may do some good. If it is determined to withdraw it, something which it is entitled to do if it can command a majority, it should do so in accordance with the procedure of the House and not try to establish a new way of doing things. God knows who will occupy the Chair in years to come. This precedent may be used in order to allow the rights of Deputies to be trampled upon.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
Link to this: Individually | In context

The proposition presented to us by the Chief Whip is not only dangerous but also unacceptable. It cannot be acceptable to the House. It should not be acceptable to the Government. It is not acceptable to the Opposition, as voices have already recorded, and I add our view to that. Without question, the Order Paper is exactly as has been read into the record. It was adopted here this morning. This is the basis upon which is was decided. It was determined by Members. Quite frankly, there is no greater way to describe what is being proposed than a sleight of hand.

The natural outworking of this situation in the future could mean that a Government, on so-called mature reflection overnight, could overturn almost any decision which this House makes regarding legislation or any other matter. The following morning, via the mechanism of the Order of Business, it could dump a decision which has already been taken. That is unacceptable and is not the way to work. What confidence can any of us, as elected voices in this Chamber, have in the decision-making process of the Dáil if the Government takes unto itself the right to change a decision of the House the following morning or afternoon by merely introducing a proposition on the Order of Business? That is what is proposed. It is unacceptable. It is a very dangerous proposition and precedent. By any measurement, in terms of democracy, the rights of voices and due process in terms of the preparation of legislation, it is not acceptable.

If the Government has made an error regarding this matter, it has done so, but I join with the previous speaker in making the point that it seems like an eminently sensible and reasonable amendment in the first instance. I cannot find any excuse which would be acceptable for the mechanism which is now presented to overturn it. We disagree with it.

Séamus Kirk (Louth, Ceann Comhairle)
Link to this: Individually | In context

I ask Deputy Stagg to be brief as we need to move on. We need to make a decision.

Joan Burton (Dublin West, Labour)
Link to this: Individually | In context

This is important.

Emmet Stagg (Kildare North, Labour)
Link to this: Individually | In context

It might be rather difficult to do that now.

Joan Burton (Dublin West, Labour)
Link to this: Individually | In context

This is an historic change.

Emmet Stagg (Kildare North, Labour)
Link to this: Individually | In context

The reason we are discussing this is because of the admission by Government that it made a mess of things this morning in trying to deal with a simple matter, where two separate procedures are available to Government to correct the situation, if they so wish. However, it now wants to use a sledgehammer by setting a dangerous precedent in the House which was never used before in its history. I have never heard of anything like it. As for quoting Standing Order 26, it sets out the main reasons this cannot be done by the Government. The Government does not have the authority. It is ultra vires - beyond its power - to try to introduce something that is not in the green, printed Order Paper for the day. The Government is not allowed to do that through Standing Orders. 5 o'clock

We adjourned at 1.20 p.m. to allow the Whips to discuss this matter. The Whips met in the usual room and all of the Whips attended. We agreed a procedure to deal with this which is available to the Government and to the Minister, namely, to let this matter go straight through the House to the Seanad, which can return an advice to this House that the Bill should be changed in accordance with the Minister's wishes. That matter would then simply be put to a vote here, and that would be the end of it.

That is the procedure available to correct what I appreciate was a mistake by the Minister and the Government side. I appreciate and accept it was not the intention of the Minister to allow the decision go the way it went. However, there is now an easy solution with no risk to the Minister because the Seanad cannot change a Finance Bill in any way or make any amendment. It can simply advise this House of what it considers a desirable amendment. The Bill will then come back to this House, where the Minister, with his majority and his lively officials to remind him that a vote is coming up, will ensure the vote is passed with the majority the Government would have on a Finance Bill. That is the procedure available.

There is another alternative the Minister could use and, although it is a bit more complex, it has been used in the House previously, namely, a one-line Finance (No. 2) Bill 2010 to correct this fairly innocuous amendment.

I am worried about the timescale that is available for the Finance Bill and the very important measures contained in it while this matter is being discussed at great length. However, because of the precedent it would set, we are determined that this precedent cannot be set. A Cheann Comhairle, you have a particular responsibility to ensure that proposals from the Government are in order. The proposal this morning was not in order and should not have been allowed. The proof of the pudding is in the eating, when the Government now tries to correct it at 5 p.m.

Séamus Kirk (Louth, Ceann Comhairle)
Link to this: Individually | In context

A number of Deputies are offering on the matter and we are labouring.

Emmet Stagg (Kildare North, Labour)
Link to this: Individually | In context

This is very important.

Brian Lenihan Jnr (Dublin West, Fianna Fail)
Link to this: Individually | In context

I may be able to assist the House.

Paul Kehoe (Wexford, Fine Gael)
Link to this: Individually | In context

A Cheann Comhairle-----

Deputies:

The Minister wants to assist the House.

Paul Kehoe (Wexford, Fine Gael)
Link to this: Individually | In context

When the Whips met, as Deputies Bruton, Gilmore and Stagg rightly said, we were given two choices, namely, either to go to the Seanad or to introduce a new Bill. Five minutes before the House recommenced dealing with the Bill a short time ago, I got a call to say neither would happen and that the Chief Whip would bring in a new order. The reasoning was that if a new Bill was to be introduced, the advice of the Attorney General would have to be sought and it would have to be passed by Cabinet. If the Cabinet is able to do that and the new Bill can be introduced at 10.30 p.m. tonight, when the current Bill is passed, we give it the opportunity to do so. It can be done.

If what the Government proposes is allowed to go through, a Cheann Comhairle, you are showing disrespect for Members. It is up to you to protect the Members.

Séamus Kirk (Louth, Ceann Comhairle)
Link to this: Individually | In context

The Deputy should leave adjudication on these matters to the Chair.

Paul Kehoe (Wexford, Fine Gael)
Link to this: Individually | In context

It is up to the Ceann Comhairle to protect the Members. If this happens, the Members of the Opposition are not being protected.

The amendment was passed yesterday in a very democratic way. What the Government is doing here is overturning democratic rights and being undemocratic. I ask the Ceann Comhairle to look deeply into what is happening because we are creating a very dangerous precedent by doing what we are doing here today.

Brian Lenihan Jnr (Dublin West, Fianna Fail)
Link to this: Individually | In context

I may be able to assist the House in this matter. I am anxious to have a discussion on it on the floor of the House because there are certain matters that should be put on the record before I assist the House.

First, I welcome the fact Deputy Stagg indicated - I take it he was speaking for his party in this regard - that it was an inadvertent mistake on my part that I did not say "í" at the end of the debate. I accept his suggestion to that effect, which is most helpful.

In regard to the position of the Taoiseach, he did not move anything in this House by sleight of hand this morning. As soon as the Taoiseach received the relevant procedural advice, he brought it to the House, and it is a matter that can be brought without written notice. It is the Standing Order of the House, subject to your ruling, a Cheann Comhairle, that an amendment of this character in the written Order of Business can be submitted by the Taoiseach. Therefore, the Taoiseach was not acting in any sense with a sleight of hand in this matter.

Leaving aside that issue, however, I accept that the Opposition parties were taken by surprise in that sense because they saw a written notice and then they saw a different proposal. It is for that reason I have proposed we should vacate this morning's order and that it should not stand. The Opposition Members' case, essentially, is that they were taken by surprise by it. They also have a wider constitutional complaint which they have laid vent to but the procedure under the Constitution is that we regulate our own arrangements by Standing Order. There is ample scope in the Standing Order to proceed in this way if we wish, again, subject to your ruling, a Cheann Comhairle. My understanding is that we can proceed in this way.

Incidentally, I say to Deputy Gilmore that we have not arrived at section 6 because sections 4 and 5 were ruled out of order.

Joe Costello (Dublin Central, Labour)
Link to this: Individually | In context

Of course, we have arrived at it.

Brian Lenihan Jnr (Dublin West, Fianna Fail)
Link to this: Individually | In context

One can argue that, although I do not want to go into a procedural argument about this and want to assist the House. It is an interesting procedural labyrinth we could spend hours exploring when we should be exploring the Finance Bill.

With regard to the amendment itself, I have used the time available to have a further consideration of this amendment undertaken at my Department. The amendment in its expressed terms is limited to the preparation of a report on a cost-benefit analysis of "tax expenditures provided for by this Act", setting out the costs of tax foregone and the benefits in terms of job creation or otherwise. It is worth noting, that it is "tax expenditures provided for by this Act", not tax expenditures provided for more generally in previous financial legislation.

The timeframe of one month is too short in terms of the capacities of my Department, and I would require three months to do it. However, on that basis, I am prepared to consider the amendment and to accept it at this stage, although I will bring forward a Seanad proposal to extend the period to three months for the preparation of this report. I do not believe there is any harm in the amendment, and many wider subjects were discussed with it on which neither I nor Deputy Burton gave ground. I am happy to accept the text of the amendment, subject to the fact I will be bringing forward a recommendation.

I was very reluctant to allow this matter to be dealt with at a Whips meeting rather than on the floor of the House because the relationship between this House and Seanad Éireann on a Bill of this type is different from the relationship that would apply to most legislation. The powers of the Seanad are circumscribed by the Constitution in regard to legislation of this type and the pre-eminence of this House is clearly acknowledged in the Constitution. It is for that reason I would prefer this matter to be settled, as far as we can settle it, in this House at this stage.

Joan Burton (Dublin West, Labour)
Link to this: Individually | In context

I thank the Minister for his remarks, which I find helpful. As I understand it, the Minister is agreeing to accept this amendment pro tempore, as it were, even though he confesses to not liking it. Nonetheless, he requires a longer timeframe of three months in which to present a report to the House. I am certainly happy to accept that.

I want to clarify one point. In what the Minister says, is the attempt by the Chief Whip to reintroduce the order of the day withdrawn and does the order of the day stand? If the Minister will confirm that, I will certainly accept his offer. A calm discussion on the floor of the House could perhaps have reached this agreement some time ago.

Séamus Kirk (Louth, Ceann Comhairle)
Link to this: Individually | In context

May I inquire of the Minister if we are resuming on amendment No. 6?

Brian Lenihan Jnr (Dublin West, Fianna Fail)
Link to this: Individually | In context

I fear to tread where others have gone. Of course I do not wish to press that motion. I do not know if there is a procedural capacity in the House to agree the period of three months at this stage. That is the only issue. There may not be and in that case we will go to the Seanad and then back to the House.

Róisín Shortall (Dublin North West, Labour)
Link to this: Individually | In context

The Minister is trying to avoid-----

Brian Lenihan Jnr (Dublin West, Fianna Fail)
Link to this: Individually | In context

That is not what I am trying to avoid.

Joan Burton (Dublin West, Labour)
Link to this: Individually | In context

I think the Minister has to bring an amendment to the Seanad and then come back here. We are prepared to facilitate the Minister. Earlier today, the Minister asked me why I would not withdraw the acceptance of the amendment but that was not within my power.

Eamon Gilmore (Dún Laoghaire, Labour)
Link to this: Individually | In context

I think a solution has been arrived at and I thank the Minister for helping the House with it. In effect, Deputy Burton's amendment will stand, albeit with a three month requirement, and we will avoid the situation where a new precedent is being set by Government.

Joan Burton (Dublin West, Labour)
Link to this: Individually | In context

That is important.

Eamon Gilmore (Dún Laoghaire, Labour)
Link to this: Individually | In context

It has also been my concern that we would have a revisiting of issues decided by the House. The procedural issue of immediate concern to us has been withdrawn. The Minister has told us his intentions with regard to Deputy Burton's amendment and I presume the procedure is that this amendment is brought to the Seanad and returned to this House.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
Link to this: Individually | In context

Before the Minister responds, I think it fair that, in recognition of the position he has adopted regarding the collective concerns of the Opposition, he has the assurance of all the Opposition parties that they respect the position he has articulated here and his intent and we will honour that when this presents itself again in the future. I commend the Minister's open-mindedness to the arguments already recorded.

Séamus Kirk (Louth, Ceann Comhairle)
Link to this: Individually | In context

May I clarify with the Minister that we are recommencing on amendment No. 6?

Brian Lenihan Jnr (Dublin West, Fianna Fail)
Link to this: Individually | In context

We are recommencing at wherever we stopped last night.

I thank the Members for their contributions. Deputy Burton's amendment is only a recommendation in the Seanad because it then has to be voted on in this House and that is the reason I was anxious to view the matter on its merits in this House.

Emmet Stagg (Kildare North, Labour)
Link to this: Individually | In context

On a procedural matter, is it not necessary to correct the original order that was made this morning?

Séamus Kirk (Louth, Ceann Comhairle)
Link to this: Individually | In context

We will do so now.

The proposal should read: "The resumed Report and Final Stages of No. 18 shall be taken today and, if not previously disposed of, be brought to a conclusion at 10.30 p.m. tonight ". We are dropping the section that gives offence to Members. Is that agreed?