Thursday, 26 March 2020
An Bille um Bearta Éigeandála ar mhaithe le Leas an Phobail (Covid-19), 2020: Céim an Choiste agus na Céimeanna a bheidh Fágtha - Emergency Measures in the Public Interest (Covid-19) Bill 2020: Committee and Remaining Stages
I move amendment No. 1:
In page 6, lines 24 and 25, to delete “such day as the Minister for Housing, Planning and Local Government may by order appoint” and substitute “the 30th day of March 2020”.
The amendment seeks to tidy up one aspect of the Bill, which the Minister of State might wish to speak to. It will remove the discretion from the Minister in setting the commencement date of the measures. It aims to give clarity and certainty that they will start on Monday, 30 March, after Uachtarán na hÉireann signs the Bill into law.
I see no reason there should be any issue with these amendments, which are in the context of what regard the Minister should have when making a decision on the Christmas period. The issue of public consultation is very important. With the strategic housing development, SHD, process in particular, there is the provision for municipal committees or area committees to have an input. If they are not meeting, that obviously affects the SHD legislation. Likewise, if we are in a period where larger planning applications cannot have the usual level of public consultation or public engagement, these are issues to which the Minister should have regard when deciding to bring in what is effectively the Christmas period. This is just to broaden the list of criteria to which the Minister should have regard and there is a good case for accepting it.
Amendment No. 1 relates to section 1(2)(a), which is the commencement provision of Part 3 of the Bill, comprising section 9, which relates to planning and building control matters. The amendment seeks to amend the Bill so that, rather than the emergency provision being commenced by order of the Minister at an appropriate and effective time, when it is needed, the emergency planning provision would instead lose this flexibility and would automatically commence this coming Monday, 30 March 2020.
Amendments Nos. 6 to 8, inclusive, and 13 are related. Amendment No. 17 is a physical alternative to amendment No. 6. The amendments may be discussed together, by agreement. Is that agreed? Agreed. I understand Deputy Paul Murphy is taking the amendment on behalf of Deputy Mick Barry.
I move amendment No. 6:
In page 7, lines 16 to 18, to delete all words from and including “means—” in line 16 down to and including line 18 and substitute the following:
“means a period that shall commence on the enactment of this Act and shall end on a resolution being passed in Dáil Éireann to that effect, the period shall be a minimum of 12 months in duration commencing on the enactment of this Act.”.
Amendments Nos. 6 and 7 effectively have the same purpose, which is that instead of the emergency period going on for a period of three months, it will go on for 12 months. What we are arguing is that the upward freeze on rents would not just be for three months but would be for 12 months, and the ban on evictions would not just be for three months but would be for 12 months. It is clear and we have argued in the past that this should be a permanent measure, and we have put forward an anti-evictions Bill to do precisely this. We have argued in favour of an upward rent freeze in the past. We are in favour of these things being permanent because it is what renters need in terms of having a break from the crisis that is currently going on and has been going on.
Even if it is not going to be permanent, we think there is a very strong argument to make it at least 12 months. From one point of view, the very severe restrictions which we agreed at last week's Dáil sitting go until November and go beyond three months. There is no reason significant powers are being given to the State for a period until November and, yet, a small bit of a break for renters exists only for three months. The reality is that we all know this emergency for renters is going to continue beyond three months. Even in a best case scenario, where things are relatively back to normal in three months in terms of people being able to return to work, an end to very widespread social distancing and so on, the economic crisis that flows from this is going to continue. There will be people without income for an extended period and these renters deserve a break. They deserve a break from the threat of eviction standing over them and they deserve a break from potential increases in rents. The Government should accept, at the very least, that if it is not willing to make these measures permanent, which I think it should, it should accept that they should exist for 12 months.
I wish to speak to amendment No. 8. The exceptional emergency measures put in place last week were badly needed but the legislation still needs to be improved upon. Those measures were put forward by a caretaker Government. While I agree with most of the measures we are putting forward today in the 33rd Dáil, I firmly believe normal scrutiny will return under a future Government.
That is why the amendment I have tabled to extend the measures, if we are to extend these measures, places the power firmly in the hands of the Oireachtas after the three-month emergency lapses. The Government proposal is that it can unilaterally decide to extend it by effectively by-passing the Dáil. The significant powers contained in this Bill should be proportionate, effective and subject to proper oversight and review. The Fianna Fáil amendment ensures a high level of oversight would be required. Ultimately, the decision for amendment or extension of these measures would be brought back to the Members elected by the people.
I will be brief. I support amendments Nos. 6 and 7, but I oppose amendment No. 8. While I agree completely with its intention, my genuine worry is that if, for some reason, the Oireachtas cannot meet in three months, then the proposed measures to protect renters will fall. While we may have a Government, my bigger worry is that we do not know what is going to happen with the pandemic. We cannot have a situation in three months where, if it is not possible for us to meet physically for a session, these valuable measures we are debating would not be able to be continued automatically by the Minister. I respect Deputy Darragh O'Brien's intention, but we will be opposing his amendment.
That is fine. I thank the Ceann Comhairle. I support the amendment submitted by Deputy Darragh O'Brien. It is important to have scrutiny and I already made that point a week ago. I also support the amendment in Deputy Barry's name regarding the year. I realise the difficulties for the Government with it going for a year, but it makes no sense that we have a separate time limit regarding mental health and other extraordinary powers up to November, while we are limiting these powers to three months. Perhaps some Minister could stand up and explain the logic of the inconsistency between the time periods.
I will speak on amendments Nos. 6 and 7 first. Both seek to have the three-month emergency period extended to 12 months. We think that is unnecessary. Section 4 makes adequate provision that, should the need arise, the Government can extend the emergency period beyond three months, as it is necessary, taking into consideration the relevant factors at the time and the advice of the Minister for Health. Again, we are bringing in these emergency powers based on the emerging public health issue. In fairness, I know the Deputy has other policy considerations concerning economic issues that may go longer than 12 months. Beyond that, however, we would need a different conversation. These emergency powers are based on advice and we believe it is fine to enact these for the public health reasons and the public health emergency. We think it is a bit too far to go beyond that with the legislation. We do not think it is necessary. There is a provision to extend this up to November if needs be, as well.
Regarding amendments Nos. 8 and 13, the Minister for Housing, Planning and Local Government must request a Government order to be made, but can only do so having consulted with the Minister for Health and with the consent of the Minister for Public Expenditure and Reform. The aforementioned Ministers must be satisfied that it is appropriate to extend the emergency period, having regard to the threat to public health. The reason we are having this conversation is this threat to public health, the highly contagious nature of Covid-19 and the need to restrict the movement of people to prevent the spread of Covid-19. Under section 4(2) of the Bill, a Government order made under that section shall be laid before each House of the Oireachtas and "if a resolution annulling the order is passed by either such House within the next 21 days". Basically, the House can annul this if it is not happy with it. The danger here-----
I will be brief. Does the Minister of State actually believe there are any circumstances in which this legislation will not be needed in three months plus? Are there any circumstances, for example, where in four months it will be completely okay to allow landlords to evict tenants or increase their tenants' rent? Is it not absolutely clear, even at this stage, that in three months plus we will still be dealing with the aftermath of this crisis? That is a best-case scenario, where we will be in an aftermath phase that will have a major impact on renters. Renters will still need some relief from that situation.
My second point is how can the Government justify on one hand extending the substantial powers and restrictions on civil liberties discussed here last week until November and yet these powers only last for three months?
I appreciate both of them can be extended but why is there a discrepancy with November for that and with three months for this?
I wish to inform colleagues that the Business Committee has already decided the Dáil should sit next Thursday and the following Thursday. My proposal is that in 90 days, these extraordinary powers would be reviewed. Oversight has to return to the Dáil proper. The people in a Republic are sovereign through us as their representatives. That is why it is incredibly important that the measures taken here, whether they need to be expanded in 90 days - and that may be required - or reviewed at the least, a vote of the Dáil and the Oireachtas must be taken to affirm that it cannot be left to one person in what is a caretaker Government, through no making of anyone in the Government, to be able to sign forward future legislation where we are making extraordinary decisions with extraordinary expense, which is all necessary and I am not criticising the measures. These are extraordinary measures and the Dáil should be allowed to do its job in 90 days' time.
We all agree the circumstances are not ideal that we have to make all these decisions just after the election but there is the opportunity to annul it. It is unnecessary to have to come back in here to seek an extension because of the complications. We do not know what the situation will be with the virus or with the formation of a Government and the Seanad and so on. There might be an unnecessary complication and it might cause us difficulty down the road when we want to help people, as I know Members want to do. We are asking Members to accept that this amendment is unnecessary. If Members are unhappy with a decision that is made not by one Minister but by the Minister for Housing, Planning and Local Government, the Minister for Health or the Minister for Public Expenditure and Reform, this House can annul it straight away - the next day if need be - or within the following 21 days. We believe that is enough of a precautionary measure and I ask Members to consider that. I know we are talking about an extension but we do not know what will happen in the next 90 days.
On Deputy Barry's amendment, he is asking us to go to 12 months. All these income supports and changes we are introducing are being done for a three-month period. That is why this period is aligned with that and why they are aligned together.
Chris Andrews, John Brady, Catherine Connolly, Pearse Doherty, Francis Noel Duffy, Dessie Ellis, Neasa Hourigan, Claire Kerrane, Michael McNamara, Imelda Munster, Paul Murphy, Gerald Nash, Cian O'Callaghan, Roderic O'Gorman, Louise O'Reilly, Eoin Ó Broin, Aengus Ó Snodaigh, Eamon Ryan, Róisín Shortall, Bríd Smith, Duncan Smith, Peadar Tóibín, Mark Ward.
Cathal Berry, James Browne, Peter Burke, Mary Butler, Jack Chambers, Barry Cowen, Stephen Donnelly, Paschal Donohoe, Bernard Durkan, Damien English, Noel Grealish, Simon Harris, Heather Humphreys, Paul Kehoe, Josepha Madigan, Micheál Martin, Mattie McGrath, Michael McGrath, Jennifer Murnane O'Connor, Darragh O'Brien, Jim O'Callaghan, Kieran O'Donnell, Richard O'Donoghue, Neale Richmond, Robert Troy.
Cathal Berry, James Browne, Mary Butler, Jack Chambers, Catherine Connolly, Barry Cowen, Stephen Donnelly, Francis Noel Duffy, Neasa Hourigan, Micheál Martin, Mattie McGrath, Michael McGrath, Michael McNamara, Jennifer Murnane O'Connor, Gerald Nash, Darragh O'Brien, Jim O'Callaghan, Richard O'Donoghue, Roderic O'Gorman, Eamon Ryan, Duncan Smith, Peadar Tóibín, Robert Troy.
Chris Andrews, John Brady, Peter Burke, Pearse Doherty, Paul Donnelly, Paschal Donohoe, Bernard Durkan, Dessie Ellis, Damien English, Charles Flanagan, Noel Grealish, Simon Harris, Heather Humphreys, Paul Kehoe, Claire Kerrane, Josepha Madigan, Imelda Munster, Paul Murphy, Cian O'Callaghan, Kieran O'Donnell, Louise O'Reilly, Eoin Ó Broin, Aengus Ó Snodaigh, Neale Richmond, Róisín Shortall, Bríd Smith, Mark Ward.
Amendments Nos. 9 to 12, inclusive, are related. Amendments Nos. 10 to 12, inclusive, are physical alternatives to amendment No. 9. Accordingly, amendments Nos. 9 to 12, inclusive, will be discussed together.
I move amendment No. 9:
In page 8, to delete lines 3 to 6 and substitute the following: “(i) the nature and potential impact of Covid-19 on individuals, society and the State,
(ii) the capacity of the State to respond to the risk to public health posed by the spread of Covid-19,
(iii) the policies and objectives of the Government to protect the health and welfare of members of the public,
(iv) the need to mitigate the economic effects of the spread of Covid-19, and
(v) the need to ensure the provision of adequate housing, in the interest of the common good, for public health purposes,”.
The current wording in this section is focused and functional. However, will the Minister broaden the scope and the definition of what is recognised as an emergency period? It can be seen from the previous amendments on which we have voted that it is becoming increasingly difficult for us to know when this crisis will end, how it will unfold and whether it will be for three, six or 12 months.
We are trying in this amendment to provide some discretion in the legislation, particularly in the area of housing because there is for example a significant difference between freezing a planning application for three months and freezing somebody's rent for three months. We would like the Minister to consider that our current housing crisis has a very real public health implication, as we have seen in recent weeks.
I support Deputy Hourigan's amendment.
The purpose of my amendments Nos. 10 and 11 and Deputy Barry's amendment No. 12 is to extend the reasons for which the three-month period could be extended. In addition, they aim to tackle the housing emergency in the State. I almost felt sorry for the Taoiseach when he explained how all these radical measures are being taken now which he earlier told us were entirely unconstitutional, that we could not have a rent freeze or a ban on evictions. His argument was grounded in the idea of the public good, the common good being weighed against private property rights and that given the scale of the emergency the Government is able to take such measures. Before the coronavirus hit a massive crisis existed for renters in this society. It existed in terms of homelessness and soaring unaffordable rents, and that crisis is likely to continue after this three months and the Government should be able to extend it on the basis of avoiding the housing emergency.
I do not intend to accept any of these amendments. They are all being rejected. Part 2 of this Bill is intended to operate only during the focus period of a public health emergency. I ask people to understand that we believe we have an opportunity to give greater protections to tenants for these couple of months linked to the public health emergency that exists today. Going beyond that would jeopardise this legislation and may not be able to help the people we are trying to help. There are lots of other policy discussions Deputies want to have, new Governments will come in and those discussions can be had but for today and tonight this is for an emergency situation for the next three or four months. I ask Members to look at it through that prism only. We have had the other discussions before and will have them again. They can absolutely continue at a later stage but for tonight I need people to understand this is to give us the powers to help people for the next three or four months if needs be, based on public health. I cannot accept these amendments.
I move amendment No. 14:
In page 8, between lines 12 and 13, to insert the following: “5. (1) All Notices of Termination of tenancy which fall to be served during or after the enactment of this Act are hereby deemed invalid and no notice of eviction on any grounds may be served on any tenant until this Act is repealed.(2) All subsequent Notices of Termination shall comply with the minimum notice periods applicable and date from the date they are served after the repeal of Covid-19 Emergency Measures in the Public Interest.”.
The reason for tabling this amendment is to ensure that this is not just a temporary solution during the period of the crisis. We know people who were served notices of eviction before the crisis was declared and became an emergency in this country. They were, for example, given a notice of eviction in January, to be out by November. The period of this crisis does not enable them to find alternatives, given the financial hardship. If this amendment was accepted it would ensure that everything had stood still for these three, four or six months and would go back to square one when it is over.
We would start at stage one, from day one, when this crisis is declared ended. That is the purpose of amendment No. 14.
With regard to amendment No. 19, I know the Government intends to have a provision to stop all evictions during the current crisis. To avoid any doubt, we need to be reassured, particularly with regard to the Traveller community, that this amendment will include all local authority tenants, including the Traveller community, whether they are on legal or illegal sites. Hundreds of Traveller families live in this country without access to water or to toilets, in crowded conditions. I know the Minister of State, Deputy English, has issued instructions to local authorities to take certain measures, but my reports back from the Traveller organisations is that, notwithstanding the difficulty in implementing those measures, there is resistance from local authorities. We need to ensure that there are no evictions in the Traveller community. It has to be spelled out to avoid any doubt.
Amendment No. 17 is to remove the section of the Bill that would deny people additional time to build up towards a Part 4 tenancy that is proposed in the Bill. I think other parties and Deputies support the principle that people living as tenants should be able to acquire those rights. I strongly support Deputy Bríd Smith on amendment No. 19. I raised this earlier and directly with the Minister. There is significant fear among the Traveller community, both on legally sanctioned sites due to inadequate facilities and overcrowding, and also on temporary halting sites. Let us not forget that the reason there are so many illegal halting sites is that many local authorities simply do not spend the money that central Government gives to them to provide proper sites.
Section 5(1) provides that a landlord shall not serve notice of termination during the emergency period but does not specify what will happen if the landlord does so. Our amendment provides that any such notice shall be null, void and of no effect.
Obviously, the notice of termination served in accordance with the Act shall not be served. The Residential Tenancies Act 2004 is confined to certain tenancies and specifically excludes persons who are living in the landlord's house. The rent a room scheme is specifically excluded and I do not think it should be. The purpose of amendment No. 16 is to bring persons who could otherwise be evicted within the protection which the Government gives to tenancies within the meaning of the 2004 Act. There are other exemptions within the Act which would be removed, therefore bringing those tenants within the protection of the Act. It specifically applies to people in a scenario such as a rent a room scheme.
The last division demonstrated that there is a possibility to pass real measures that will make a difference to renters now, in the next half an hour. There is a potential majority to pass these things which will actually make a difference. It is up to the Independent Deputies who got votes from ordinary people, including many renters, to stick to the kind of promises that I am sure they made in the election and to vote for the interests of renters this evening. The second point I make is to Fianna Fáil. If these votes were taking place in the last Dáil, Fianna Fáil would be abstaining on all of these things because it would know that Fine Gael would safely be able to defeat it. If Fianna Fáil abstains on any of these measures, they will pass. I appeal to Fianna Fáil at the very least to do what it would have done in the last Dáil. Do not very obviously vote for the interests of landlords against renters and block positive changes that we can make tonight in this crisis.
I will address amendment No. 18. There needs to be some level of protection for people who are effectively living as licensees in owner-occupied homes. This is a very modest and balanced proposal for 28 days' notice to quit.
I sense many other policy discussions here tonight.
I understand we all come from different spaces but in this situation we need people to support this legislation for it to work. If Deputies try to insert amendments that might jeopardise the legislation, it might not work and might not give people the support we all want to give them to keep them in their homes and places of residence over the next three or four months. That is what we are trying to achieve. The Deputies want to have other policy discussions that go way beyond this. This is not the time for them. The Deputies are in danger of jeopardising the legislation we are trying to enact.
I will go through the issues raised. With regard to Traveller accommodation, we have had a conference call with relevant bodies and have worked with them very closely. A specific circular has been sent to all local authorities. There will be no evictions of Travellers from unauthorised sites during this period. The local authorities are very clear about that. This applies to existing unauthorised sites. I cannot condone new unauthorised sites; that is a different situation. There is no issue with regard to any existing sites as of today. Local authorities are fully on board with that. They have been issued an instruction in that regard. I cannot be any clearer than that. I hope that is enough for the Deputies.
I move amendment No. 16:
In page 8, line 15, after “period.” to insert the following: “This provision shall also apply to a room rented in a landlord’s home and informal arrangements where there is no tenancy agreement in writing.”.
I move amendment No. 18:
In page 9, between lines 12 and 13, to insert the following: “(7) During the duration of the emergency period licensees in owner occupied homes shall be entitled to a notice to quit period of at least 28 days.”.
I move amendment No. 19:
In page 9, between lines 12 and 13, to insert the following: “(7) (a) Notwithstanding any of the provisions in this section, all proposed evictions in all tenancies in the State, including those not covered by the Act of 2004, are prohibited during the operation of the Emergency Measures in the Public Interest (Covid-19) Act 2020.
(b) For the avoidance of doubt, this section applies to all Local Authority and Approved Housing body dwellings.
(c) For the avoidance of doubt, all Travellers who are currently resident in any location should not during this crisis be evicted from that location except where movement is required to ameliorate hardship and provide protection and subject to consultation with the Travellers involved.”.
Chris Andrews, John Brady, Catherine Connolly, Pearse Doherty, Paul Donnelly, Francis Noel Duffy, Dessie Ellis, Neasa Hourigan, Claire Kerrane, Mattie McGrath, Michael McNamara, Imelda Munster, Paul Murphy, Gerald Nash, Cian O'Callaghan, Roderic O'Gorman, Louise O'Reilly, Eoin Ó Broin, Aengus Ó Snodaigh, Eamon Ryan, Róisín Shortall, Bríd Smith, Duncan Smith, Peadar Tóibín, Mark Ward.
Cathal Berry, James Browne, Peter Burke, Mary Butler, Jack Chambers, Barry Cowen, Stephen Donnelly, Paschal Donohoe, Bernard Durkan, Damien English, Charles Flanagan, Noel Grealish, Simon Harris, Heather Humphreys, Paul Kehoe, Josepha Madigan, Michael McGrath, Jennifer Murnane O'Connor, Darragh O'Brien, Jim O'Callaghan, Kieran O'Donnell, Richard O'Donoghue, Neale Richmond, Robert Troy.
I move amendment No. 20:
In page 9, between lines 12 and 13, to insert the following:
“6.Section 67(1) of the Act of 2004 is amended by the insertion of “subject to section 5(1) of the Emergency Measures in the Public Interest (Covid-19) Act 2020after “tenancy” where it secondly occurs.”.
Section 67, as drafted, would allow a landlord to issue a 28-day notice to a tenant for non-payment and then issue a termination notice within 28 further days. This is a total of 56 days, which is less than the three months emergency period. The proposed amendments simply provide that the section 67 entitlement of the landlord to serve a 28-day notice to quit is subject to the three-month emergency period. Therefore, a landlord should not be able to serve a notice to quit for arrears during the three-month emergency period.
I want to speak to amendment No. 38. Obviously, while the measures that have been proposed in the Government's Bill will give renters a level of temporary protection, one of the big concerns many of us have is that they will build up significant rent arrears over that period and even if, for example, an emergency rent supplement payment is provided, which we are hearing could be the case, that still will not deal with the problem. Our view is that it would not be good either for tenants, the rental system or the economy if we have not just thousands but potentially tens of thousands of tenants with a very substantial rent arrears debt burden at the other side. What we are trying to do with this amendment is simply create a mechanism whereby Government and Opposition can come together following the passage of this Bill, consult with lenders, tenant organisations and landlord organisations, and look at the possibility of how to address what is going to be a very significant problem. Clearly, our preference is to have some level of rent reductions and rent waivers, particularly where tenants and landlords have availed of mortgage moratoriums. However, we are not being prescriptive. The amendment simply provides a process and a mechanism for such interventions to be discussed, debated and, hopefully, introduced at a later stage.
Amendment No. 22 deals with the formula by which rent pressure zones are guided. As we know, under the rent pressure zones, rent increases are calculated on the basis of the months involved. This amendment proposes that we do not allow those months to be included in the calculation for the rent increase. The formula would mean tenants come out of this crisis with a huge rent increase if the months of the crisis are included. A temporary ban on rents rising may be lifted but having the months calculated within future rent rises in the rent pressure zones would cause huge hardship. That is the purpose of the amendment.
Amendment No. 21 seeks to give families and renters a breathing space of three months at the end of the emergency period.
I think that is a sensible measure to make things a bit easier on people.
On amendment No. 38, I understand where Deputy Ó Broin is going with this and I would like to hear the remarks of the Minister of State. I refer to one of the things Deputy Ó Broin calls for within 30 days post the crisis. That is one of the reasons why in the previous Fianna Fáil amendment that we wanted the Oireachtas to be recalled after 90 days in order that one could have a formal review of it in the Dáil. Does the same logic apply for a report to be done within 30 days by the Members of the Oireachtas and others? If things happen that we do not expect to happen, will that have an impact on the publication of a report? Where will that report go, should the Dáil and Seanad not be recalled because of the amendment that was lost earlier?
When Deputy Ó Broin comes back in near the end, I would like to understand the mechanism proposed. That is one of the reasons I and others believe we need a formal review of how this legislation will work. It was for the purpose of having a formal recall of the Dáil and Seanad. I understand and accept the good intentions of the Sinn Féin proposal. We certainly will need to look at future debt that may be built up and provisions for dealing with that, and how measures we have put forward are being applied by lenders, landlords and others. I would have thought the best place to do that would have been here in the Chamber by people elected by the public and not just representatives and groups.
I am a little at a loss to understand why the Sinn Féin amendment No. 38 would work, when a formal recall of the Dáil after 90 days - and we are all elected by the people - would not. I ask Deputy Ó Broin to enlighten me. I am genuine and not being in any way disrespectful towards the thrust of what he is seeking. There will be an issue regarding how people may fall into debt or how landlords, mortgage lenders and others may not apply what we are seeking.
Regarding Deputy Duffy's amendment, the Bill clearly states a termination notice cannot be served and consequently, we think it is not necessary to have the change the Deputy recommends. Turning to the amendment from Deputy Cian O'Callaghan concerning rent increases, no rent increases can happen during this period. Rent reviews can proceed but only a rent decrease can be given during the crisis. Rent increases can be notified, but can only come into effect afterwards. There is the usual 90 days after that as well, so it is not necessary to bring in the change the Deputy seeks.
Turning to Deputy Bríd Smith and amendment No. 22, while I agree with the sentiment, there is no need for it because it is already stated that no rent increase shall be payable in respect of any period following the emergency period. It is as simple as that, inside or outside the rent pressure zones. There is no way of ever adding back in the period of Covid-19. It is frozen in time, so the change sought by the Deputy has already been achieved.
Regarding amendment No. 38, the Department has agreed with the ESRI, in collaboration with the RTB and the Department of Employment Affairs and Social Protection, to carry out a study of the effects of the changes we have brought in in respect of people paying rent and income supports and what happens in the next three months. Several amendments seek additional reports and ask to put a timeline in emergency legislation. We think there is no need to do that. We have started this work already and the ESRI will do it. We are happy to engage with the Deputies regarding additional terms of reference feeding into that, and to use that report to look at any other measures that might be needed later. There is no need, however, to put in emergency legislation that we are going to draw up a report that we are going to do anyway and that we have started. I hope Members will understand and co-operate with that as best they possibly can.
The time permitted for this debate having expired, I am required to put the following question in accordance with the resolution of the Dáil this day: "That in respect of each of the sections of Parts 2 and 3 undisposed of, that the section or, the section as appropriately amended, is hereby agreed to".
Amendment No. 42 is in the names of Deputies Paul Murphy, Boyd Barrett, Bríd Smith and Gino Kenny. Amendments Nos. 42 to 47, inclusive, are related. Amendment No. 43 is a physical alternative to amendment No. 42. Amendments Nos. 42 to 47, inclusive, will therefore be discussed together.
I move amendment No. 42:
In page 13, line 20, to delete “application.”.” and substitute the following: “application.
(10) A person living in direct provision who has qualified and practiced as
a dentist outside of this jurisdiction may also apply for registration.”.”.
These amendments all have effectively the same purpose, namely, that for this range of medical specialties, doctors, midwives, nurses etc., we make sure that qualified people who are living in direct provision would be able to apply for registration and be registered where there is currently a problem that those who have qualified outside the State and may be in direct provision are not eligible to be registered. This is a time when we are putting out an appeal for anyone who possibly can assist to do so. This appeal is not meant narrowly for people who have Irish citizenship or who are originally from Ireland. It is for anyone who can assist and we have well qualified and talented people who could be assisting us who are living in direct provision. These amendments would seek to make sure they can register. If the Minister can give an assurance that this will be done in a different way, I am happy to accept that assurance.
While I am speaking on the question of direct provision, we need to urgently address the real health danger posed by crammed direct provision centres where self-isolation is not possible. I understand the latest proposal from the Government is that an off-site isolation centre will be set up on a test basis but it does not seem to me to be an ultimately satisfactory solution. We need to clear these centres, as we need to clear the homeless hubs, and get people into vacant properties.
To add to that, when we look at these amendments, they may look repetitive but each of them clarifies different degrees of professional ability, including pharmacists, surgeons, doctors and nurses. There is a wealth of talent locked up inside direct provision centres that could be freed. As has been said, if the Minister can tell us a different way it can be done, it is hugely important to do so. The commitments that were made in order to help people in direct provision self-isolate need to be met without any haste. People in direct provision are being forced to eat together in close proximity. Four are often sleeping to a room. The question of self-isolation does not exist in these centres. That is not just a danger for those people but it is a danger for the entire population. We need to address this urgently and I know those representing the interests of people in direct provision are not happy with the recent meeting they had with the Minister for Justice and Equality, Deputy Flanagan. We need much more clarification, commitment and timelines on this because we are running out of time. It needs to be dealt with urgently.
We will support amendments Nos. 42 to 47, inclusive, because we have all been contacted by people who are existing in direct provision and they want to play their part. A call has gone out that everyone who can play their part should play their part and we have people who are here living in appalling and shameful circumstances who are putting up their hands. If their qualifications are appropriate and can be recognised, they should be facilitated. The Minister has said repeatedly that we all need to be on call for Ireland.
They want to be on call for Ireland and we believe they should be facilitated.
I thank Deputies for putting down these amendments. I see what they are trying to achieve and I want to try to give Deputies some reassurances and information in that regard. The first point is to remind ourselves what we are trying to do in this emergency legislation. What we are trying to do is remove any barriers to the rapid restoration to the register of qualified and experienced health professionals who had temporarily or permanently left the register of the Irish regulator. Whichever the register, if former professionals had been on it we are trying to help them get back on it as quickly as we can. Their qualifications have already been recognised in this country and they have already worked in this country. We simply want to get them back to work as quickly as we can. As Deputies have said, we have been overwhelmed by the many generous offers of people in that regard.
The HSE has identified that retired health professionals would be ideal candidates to be brought back into the workforce as they are people who would be able to hit the ground running. They would be familiar with Irish processes. The focus of this legislation is to facilitate the restoration of practitioners to the Irish registers in a fast and safe way.
I am keen to recognise that there are other health professionals in this country, as Deputies Murphy, Smith and O'Reilly mentioned, who are not yet on a professional register and who are keen to contribute in their chosen field in the fight against Covid-19. One such group is people who are in direct provision in this State. We want them and we need them. We need everyone we can to help us.
If I ask another question, does the Minister get to reply further? I would like more information, if possible, about how this can be resolved. Obviously, people in direct provision are not people with means, generally speaking. How can this be resolved quickly? How can the talents of these people be brought to bear in the fight against coronavirus?
There is no provision for such a right in the Bill because people in direct provision already have the right. The perception, if such exists, that someone living in direct provision is precluded from applying to register as a health professional is entirely mistaken. I am advised that none of our health regulators imposes any restrictions relating to citizenship, asylum status or immigration status. Any health professional can make an application to be registered. An application will be judged solely on the applicant's qualifications and merits by the relevant regulator. I am happy to talk to the Deputies about the issue of how to help people who are not of means with the process and to make information available to them. All the regulators provide routes for the recognition of third country qualifications. These can be used by persons with non-Irish qualifications whether or not they are in direct provision. My message to people is that there is another route. This Bill is about helping people who have already been on a register to get back on it, but there is absolutely a route for people with third country qualifications, including those in direct provision. I will correspond with the three Deputies in that regard.
Tá sé a hocht a chlog. In accordance with the agreement of the Dáil earlier today let us all please stand and applaud as a mark of thanks and respect to the workers on the frontline.
I move amendment No. 49:
In page 20, between lines 31 and 32, to insert the following: “Amendment of Nurses and Midwives Act 2011
15.The Nurses and Midwives Act 2011 is amended by the insertion of the following section after section 107:“108.(1) A nurse or midwife resident in the State who has qualified or practised in Northern Ireland, Scotland, England or Wales may make an application to the Board to be registered in the register of nurses and midwives pursuant to this section.(2) Subject to subsections (3) to (7), the provisions of this Act shall, with all necessary modifications, apply to—(a) a section 108 registration as they apply to a registration in the register of nurses and midwives effected by another section of this Act, and(3) No fee shall be charged for, or relating to—
(b) a section 108 registrant as they apply to a registered nurse or registered midwife, as appropriate, who is not a section 108 registrant.(a) a section 108 application, or(4) Where a nurse or midwife’s name is entered in the register of nurses and midwives pursuant to a section 108 registration, the Board shall enter in that register, or cause to be entered in that register, the term ‘(section 108 registration)’ immediately after the name to indicate that his or her registration arises from the operation of this section.
(b) a section 108 registration or the retention of such registration.
(5) (a) Nothing in this section shall be construed to prevent a nurse or midwife’s name from being entered in the register of nurses and midwives pursuant to the operation of another section of this Act, whether or not his or her name is already entered in that register pursuant to a section 108 registration.(b) Where a nurse or midwife’s name is entered in the register of nurses and midwives pursuant to the operation of this Act (other than this section) when his or her name is already entered in that register pursuant to a section 108 registration, the Board shall remove from that register, or cause to be removed from that register, the latter entry at the same time as the first-mentioned entry is made.(6) (a) Subject to subsection (7), each section 108 registration that is still in force on the 31st day of July 2020, shall, on and after that date,cease to have effect.
(c) The refusal of a section 108 registration for a nurse or midwife shall not prevent that registrant from making an application under another section of this Act to be registered in the register of nurses and midwives.(b) The Board shall remove from the register of nurses and midwives,or cause to be removed from that register, on the date referred to in paragraph (a), or as soon as is practicable thereafter, each name that was entered in that register pursuant to a section 108 registration.(7) (a) The Minister may, by order, specify a different date for the purposes of subsection (6) (including a different date for a previous different date specified in an order made under this paragraph), and if the Minister so specifies, that subsection shall be construed, with all necessary modifications, to take account of that first-mentioned date.
(b) Section 3(3) shall, with all necessary modifications, apply to an order made under paragraph (a) as that section applies to a regulation made under this Act.
(8) In this section—‘nurse or midwife’ means a nurse or midwife, as appropriate, who is resident in the State but has practiced in another state;
‘section 108 application’ means an application under subsection (1);
‘section 108 registrant’ means a registered nurse or registered midwife,as appropriate, who is such pursuant to—(a) the Board’s determination of a section 108 application, or‘section 108 registration’ means registration in the register of nurses and midwives pursuant to—
(b) a decision (howsoever called) of the Court arising from the Board’s determination of a section 108 application;(a) the Board’s determination of a section 108 application, or
(b) a decision (howsoever called) of the Court arising from the Board’s determination of a section 108 application.”.”.
The purpose of this amendment is to try to speed up the return of doctors, nurses and other clinicians to the country. We support the Bill and its efforts to streamline the reregistration of clinicians who have practised in the Republic of Ireland. However, as the Minister for Justice and Equality, Deputy Flanagan, said in his opening speech on Second Stage, that route would not be available for clinicians who have qualified in other countries. We believe that there is a pressing need to get as many clinicians as we can back into the country. The need is extremely urgent.
There are some obvious countries in which a high number of Irish doctors, nurses and other healthcare professionals have trained and worked and want to come back. For example, the NHS in the UK, as well as Canada, the United States, Australia, New Zealand and many other countries have a large number of women and men who would like to come back to Ireland and help out during this time of need for our nation. My understanding from various conversations with healthcare professionals is that serious administrative burdens are being put in their way. One nurse gave an account of trying to come back to work in Ireland. She qualified and works in the UK, but was told that in order to begin the process the HSE would need original transcripts of her nursing degree from Scotland. Given that the universities are closed, obviously that is not possible. While there may be legitimate concerns about bringing in healthcare professionals from countries which may have very different levels of clinical training and standards of clinical practice, I would argue that in the current emergency there are a great number of countries where that is not the case. This amendment seeks to streamline the process for foreign-trained clinicians to come back and help out.
I support the amendment. All of us have stories about contacts made by families of loved ones who are living abroad and have given notice in order to come home. They have booked tickets and have missed flights or have had flights cancelled and everything else. They want to come home to play a constructive part in this warlike situation. While all of us want to have proper standards, we cannot have a bureaucratic system which requires proof of degrees from universities which have closed. We have to have goodwill and trust and respect people. They will be supervised in their positions. It is vital that we do not look a gift horse in the mouth. Let those who want to come and help do so. We have always encouraged people to come back. Now that they want to come, we should make it as easy and as seamless as possible for them to work here on the front line.
We are minded to support this amendment. We need as many people as possible.
Where there is no comparison between the health systems and the qualifications, I accept that might pose an issue but there are transparent similarities between the health systems and the qualifications that should make the transition quite easy. If there are people who are willing to help at this time and people who want to come home and be, as the Government calls it, "On Call for Ireland", we should do all that we can to facilitate them. Given that the universities and colleges are closed, it is not possible for these people to get original documentation because there is nobody there to provide it for them. However, it is easy to draw an equivalence between those qualifications and to ensure that we maximise the numbers on the front line. If these people want to help it behoves us to assist them. There are transparent procedures with regard to the regulatory bodies as well. Where there is an issue with any person, that is already public and it is easy enough to verify. As I say, my party is minded to support this amendment.
I thank Deputy Stephen Donnelly for raising this with me and indeed for meeting me on it today in terms of trying to achieve what we are all trying to achieve, namely, the maximum number of nurses who want to work in our country being able to work in our country with as little bureaucracy as possible.
After talking to Deputy Stephen Donnelly earlier, I made some more inquiries, specifically in relation to nurses from the UK. A general nurse who trained in the UK has automatic qualification recognition rights in Ireland under the EU professional qualification directive. This means that her qualification is recognised in Ireland. A nurse needs only to show the Nursing and Midwifery Board of Ireland, NMBI, the parchment to prove that she has the qualification and does not need to show details of the syllabi or transcripts. Nurses need not contact the universities in the UK which, I accept, would be difficult at present. Obviously, if it is from Australia, nurses need a certificate of good standing to show that they are not struck off. In relation to any individual case, I am more than happy to talk to Deputy Stephen Donnelly. I am also more than happy to suggest on a cross-party basis we might meet with the Medical Council, the NMBI and others to make sure that the process is as streamlined as possible.
In relation to this amendment, my concern would primary relate to the fact that we do not have any residency test or reference to any residency in our legislation. If we were to get in to putting in a residency element proving that one lives in the UK, in fact, it could accidentally be another barrier. Also, how would other member states of the European feel in relation to that?
There is a long history in this country of nurses receiving excellent training in the UK and then returning to Ireland. I am informed that the existing NMBI process for the registration of EU or UK applications is one to two weeks. I take the point Deputy Stephen Donnelly will make that such a period is once they get their full application in. I will work with the Deputy to make sure there are no delays in that regard. I reminded the NMBI today that any extra resources it requires will be forthcoming.
There is no legislative necessity for this provision as it is already open to the cohort to apply to the NMBI for registration. We will make it as simple as possible.
I thank the Deputy for highlighting it. It is an important point but I believe we can deal with it outside of primary legislation.
The amendment is narrowly phrased. It states that for nurses or midwives living in the Republic who have trained and qualified in the UK alone there would be automatic recognition. Please God, we will be through this surge in a small number of months but the need is pressing.
I will not press the amendment. I will not push it to a vote, because it is technical and I do not want to jeopardise the rest of the Bill with it, but what the Minister is being told and what he states here in good faith jars with the experience of those nurses and midwives who are trying to sign up. If nurses and midwives living here have trained and work in the UK, it is not enough if it only takes three weeks to get them signed up. We need them signed up right now. We need them in our hospitals right now. We need probably for them to have specialist training in all sorts of areas related to this virus. I ask the Minister to undertake to figure out how we can reduce it to a small number of days, not weeks, such that if we have NHS trained nurses and midwives living here, we can get them into our hospitals where we need them in a matter of days.
I will liaise with Deputy Stephen Donnelly and other Opposition spokespersons in this House to arrange for a further discussion on this at our now frequent meetings on Covid-19. I am told by the NMBI that it has registered 500 nurses in recent weeks so it is genuinely doing everything it possibly can to speed up its own processes.
They have told me that they are very much adequately staffed and resourced in that regard but I am sure we can and should always strive to do better. I will liaise with the Deputy on that.
I move amendment No. 51:
In page 20, between lines 35 and 36, to insert the following:
"16.(1) The Government shall not commence this Part without a request from the Minister for Health, following a resolution of Dáil Éireann or where that is not feasible, following consultation with and the approval of, all party and group leaders of Dáil Éireann, or their nominees. (2) This Part shall continue in operation for no more than 30 days without, a request from the Minister for Health, following a further resolution of Dáil Éireann or where that is not feasible, following consultation with and the approval of, all party and group
leaders of Dáil Éireann, or their nominees.".
This amendment concerns the mental health tribunals and the fact that a consultant psychiatrist is no longer required to be on site for the case to proceed. We have no problem with the primary provision going ahead and being enacted. However, we would suggest that before this law is commenced or before a case is commenced, it comes back to the floor of the Dáil for resolution or if this is not possible logistically, it goes to party leaders for a decision.
I will discuss amendments Nos. 53 and 54. I fully appreciate what it is expected and intended that consultant psychiatrists will do and I mean no disrespect to barristers. I know there are some here and I am sure they are all very well-meaning but they are not clinicians and are not clinically trained. I have a concern. To detain someone involuntarily is a very serious undertaking. I remember when the Mental Health Act was brought in. It was debated long and hard. To have persons involved in that or to have all of that fall on the shoulders of one person, I find deeply concerning. I want to hear what the Minister has to say on this that might give some comfort. These are major changes. The fact that a person will not get a review outside of the normal six-month review so that when this is over, he or she does not have an automatic entitlement to a review is also concerning because the detention could last for six months. I do not think there should be any case where a tribunal is allowed to go ahead without the presence either remotely or otherwise of a consultant psychiatrist or a person who is clinically trained to that level. I want to hear what comfort the Minister can give in terms of this because I have serious concerns. I know other organisations have expressed those concerns all backed with the understanding that we know exactly where consultant psychiatrists are going to be and the work in which they are going to be involved. This is very serious too. The tribunals work because they are balanced and have a range of expertise and clinical knowledge and expertise. We want to hear from the Minister regarding this matter.
Amendment No. 52 is just a safeguard. One of the grounds set out in the Bill refers to testing for Covid-19. That could give carte blanche. What I am proposing is that we insert "in accordance with World Health Organisation criteria". That is a reasonable safeguard. I also support the comments made by Deputy O'Reilly. There is a significant move away from a three-person tribunal to a single-person tribunal and a person without any medical expertise. While I understand provision being made in the event of dire and severe shortages of medical personnel, it is reasonable to expect that a consultation could take place remotely. There must be medical input into a decision as serious as that. It is a reasonable safeguard in the absence of two other members of the tribunal to at least have a remote consultation and not leave that open to a situation where it is a case of whether the person is available or not. I also support amendment No. 51. I think it makes sense.
We are opposing this section on the grounds that the entire section skews the whole point of mental health practitioners existing in the first place unless this amendment is passed, which would be a major contribution to it.
I find it an extraordinarily draconian measure that a one-person tribunal, made up of a barrister whose profession is to deal with legal issues, would make a determination on somebody whose mental health was challenged and who was taken against his or her will into a mental health institution. I find this really draconian and upsetting. The Minister should explain fully why this has occurred because at the briefing we had on it, the explanation was not good enough. The explanation that was given to us is that this is what is done in other jurisdictions. I do not accept that and I believe it behoves the Minister to give a full explanation. However, we will support the amendment.
There are a number of issues. I thank Deputies Naughten and Berry for their amendment. I would make the point in response that there is already a sunset clause in this legislation and we have aligned it with the emergency legislation we passed last week in terms of it being 9 November 2020, but of course a resolution of this House can at any time shorten that. That is a safeguard which I think Deputy Berry was trying to achieve. If I were to accept the amendment as drafted I think it would be inconsistent with the approach adopted in the Act last week as well and would potentially create an anomaly in that regard.
I think I understand what Deputy Shortall is trying to achieve with her amendment on the reference to the WHO criteria. Ireland is proudly testing in accordance with WHO criteria and we intend to continue that scenario but in such a dynamic situation, were it not possible to do that where a meeting of the national public health emergency team would deviate from that, and if the testing for the health service was not in accordance with WHO criteria then the redeployment would not be compatible with the exigencies of the public health emergency and my officials have a concern that it would end up weakening the intended effect of the amendments we are trying to make. I get what Deputy Shortall is trying to do but we do have a concern in relation to that.
The Sinn Féin amendments to the Bill include two amendments under Part 5. I will deal with the proposed amendment on the insertion of the phrase "in person or by remote consultation" first. Remote or electronic consultation is already understood to apply, although implicitly, within the current Mental Health Act 2001. On foot of the Sinn Féin amendment we did seek advice from the Attorney General's office to, first, confirm that to be the case but also to advise against including an explicit reference to remote or electronic means in the amendments, as it may actually mean that remote or electronic means are excluded from the existing principal Act, the Mental Health Act, so for this reason we are opposing it but we are satisfied on the basis of legal advice that remote or electronic means are allowed.
The second amendment proposed by Sinn Féin would introduce a two-person tribunal comprising the chair being a solicitor or barrister and a consultant psychiatrist or a registered clinical nurse specialist in psychiatry or above. Following consultation with the Mental Health Commission, which is the regulator of mental health services, we have a number of reasons on which we wish to oppose this, which perhaps I will get back in on in a moment, but the policy decision to adopt a cascading approach to tribunals was taken because both the HSE and the commission did express very serious concerns over the expected lack of availability of consultant psychiatrists due to Covid-19 and my concern is that the two-person tribunal would not do anything to alleviate those pressures. I do need to say that in the case of one-person tribunals – this is really important and I want to say it on the record of this House – clinical input would still be given both by the treating psychiatrist and an independent consultant psychiatrist and where they differ in their opinion, by another psychiatrist. I do need to make that clear. I take Deputy Bríd Smith's legitimate concerns. This is not about a lawyer or a barrister just sitting down and deciding. There always will be clinical input. These are emergency measures to try to come up with a way of getting through this very difficult pandemic, but the safeguards of the clinical input will be absolutely there.
I hear what the Minister is saying in relation to it already being possible but it is not done in practice. I am not aware of situations where it happens at the moment, which is the reason I wanted to insert that clause. I do not want to do anything that would undermine the operation of the Mental Health Act either but it is my very firm view that unless it can be conveyed comprehensively to people that is going to be available to them, I will remain concerned. The Minister can understand the concerns that are being expressed here. The power to involuntarily detain an individual is an extremely serious one and it is extremely important to have checks and balances in place.
Deputy O'Reilly is entirely correct. As part of this amending legislation, we will be producing information booklets and the like for patients, particularly those in mental health services. It is important we protect their rights in this regard. I am happy to provide further briefings and meetings with the commission on this matter. It is now preparing protocols and guidance on the issue of remote consultations. It has already been implicitly provided for in the Mental Health Act. The Attorney General's advice is not to state it explicitly in this Act. It is possible, however. It is illegal. Protocols are being drawn up to make sure that people understand that.
I give the Deputy my commitment to make that clear in the work we do with the Mental Health Commission and to engage with her further on this.
Will the Minister please explain why he thinks this is not relevant to the emergency legislation? What means will he put in place to deal with crisis pregnancies where women cannot attend their doctors because of possible contamination and where it is impossible to get a doctor's visit which includes two visits within three days? What we are asking for here is telemedicine. Will he explain why all of these amendments were ruled out of order and what provisions he intends to put in place in their stead?
The amendments that were ruled out of order are extremely important. I understand why they have been ruled out of order. I am not disputing that. It does not change the fact, however, that women will still need to access termination services and will not be able to do so. I would like to hear from the Minister if there is a plan in place. If there is, how will women be able to continue to access the services in question?
I would like the Minister to address this real and pressing issue. It needs to be dealt with urgently. I raised it this morning during an earlier contribution. While the Minister for Justice and Equality indicated that something will be done on it, will the Minister provide more details?
I thank Deputies Bríd Smith, O’Reilly and Shortall for raising this issue. I agree with them and, more importantly, so do many practitioners providing services to women in crisis. We have come a long way in this House working together on these issues. We should be ensuring that we continue to protect the rights of women during this time of a global pandemic.
I note that submissions were made on this Bill on the issue of termination of pregnancy. I understand and share the Deputies' concerns. In fact, I believe we are all largely in agreement on the principles involved. We all want to ensure that women can continue to access termination of pregnancy during the exceptional circumstances brought about by Covid-19.
Section 12 of the Health (Regulation of Termination of Pregnancy) Act 2018 deals with termination of early pregnancy. It provides that a termination of pregnancy may be carried out "where, having examined the pregnant woman, he or she is of the reasonable opinion formed in good faith that the pregnancy concerned has not exceeded 12 weeks of pregnancy". The Act, however, does not prescribe the actions or clinical aspects of the medical practitioner's examination of the woman. As it is set out in section 12, the phrase "having examined" does not exclude the possibility of the examination being carried out by other means, for example, by telemedicine or video conference.
The operation of the Health (Regulation of Termination of Pregnancy) Act 2018 is underpinned by the model of care. Consequently, the Act is read alongside the model of care, or that is what our doctors do, which was developed by the Department of Health and the HSE in advance of this service coming into operation on 1 January last year. In usual time, the requirement the requirement for the medical practitioner to examine the pregnant woman does mean that the woman will usually attend the surgery or clinical setting to have a face-to-face consultation with her doctor. This is the same as for any other health service in the normal course of medical practice. A doctor will usually meet a patient in person before prescribing a course of action. Termination of pregnancy is and should be no different from any other health service in this way. In this current situation, however, social distancing, reducing contacts and reducing the burden on medical practitioners is absolutely paramount. We are considering different operational procedures in a range of areas, not least dealing with Covid-19.
In light of these considerations I want to assure the Deputies, the House, the women of Ireland, and indeed, the medical practitioners working in this area, that my officials and the HSE are working with some urgency to revise the model of care for termination of pregnancy services. The revised model of care will apply only for the duration of the Covid-19 public health emergency and it will ensure that, where necessary for the purposes of terminations under section 12 of the Act, remote consultation with a medical practitioner will be permissible. For this reason, and based on my legal advice, I am satisfied that including remote consultation in the model of care at this time will ensure that medical practitioners can continue to deliver a safe service, while also reducing social contact and thus the risk to a woman's health, as well as to that of the doctor and other patients and reducing the burden on our medical practitioners at an extraordinarily busy time. It is important, however, that the operation of the service remains true to the legislation enacted by the last Oireachtas in 2018. This was, after all, based on the referendum put to the people in May 2018 and to which they agreed. I am not proposing to make any amendments to the Act but I am reassured that the revised model of care will ensure that the service will be safely delivered during this time of Covid-19.
I move amendment No. 56:
In page 25, between lines 19 and 20, to insert the following: “Interpretation
25. In this Part, “Act of 1954” means the Defence Act 1954, as amended, extended and continued by subsequent enactments.”.
This is a very straightforward amendment. It provides for job security for members of the Reserve Defence Force who may be called up on active service to deal with this emergency or any subsequent emergency. It is absolutely the norm internationally, all across the European Union. It is completely cost-neutral and does not jeopardise, or interfere with, any other provision in this Bill.
We have heard very fine words about the Defence Forces in this Chamber today and on previous days, about the great job they do and how brave they are on the front line dealing with this crisis. This is a wonderful opportunity for us to provide tangible and practical help to those people on the front line and members of the Defence Forces would be extremely appreciative. Accordingly, I urge all Members present to support these amendments.
I welcome Deputy Berry's amendment. In the last Dáil we had a lot of discussion about the Reserve Defence Force and the great difficulty caused by geographical displacement and recruiting Reserve members around the country. This will give a major signal shift to members of the Reserve, such that if they are required to serve, they will be able to retain their employment. The fact that there is a subtle threat in the current legislative framework undermines the Minister's power to ask someone to serve. It is important that they have job security and are supported in their employment through the legislative framework, as Deputy Berry's amendment seeks.
I thank Deputies Berry and Chambers for raising this very important issue. The Government very much appreciates the service of the members of the Reserve Defence Force, RDF, which comprises the First Line Reserve, the Army Reserve and the Naval Service Reserve, and fully recognises the important role that the three elements of the Reserve Defence Force play in contributing to Ireland's defence capability. The Bill makes provisions for the enlistment of formerly enlisted personnel and is not related to the Reserve Defence Force or the calling out of the RDF. This was previously sought by way of the Defence (Amendment) Bill 2020, which fell due to the dissolution of the Thirty-second Dáil. The proposal in the Bill will widen the net of potential applicants for enlistment, thereby helping to address a shortfall in numbers and in skill sets, where there are some challenges. Re-enlistment may be for between six months and three years. The potential to address these shortfalls will support the Defence Forces' response to Covid-19 and more generally.
The amendments proposed by Deputies Berry and Naughten go beyond the scope of the Bill and relate to employment protection for members of the Reserve. I do not have any issue with the principle of what the Deputies propose. It is something that officials in the Department of Defence have been working on for quite some time. Given the complexities and implications of such a measure, it requires further consideration and I think that it should be revisited. This Bill is not the place for such a provision. It needs further consultation. I understand that members of the Reserve Defence Force have concerns that, should they be called out on a mandatory basis under permanent service or in aid to civil power, their employment status should be protected. There are currently no plans for a general call of the Reserve. My Department is liaising closely with the Defence Forces, especially with the Chief of Staff and the general officers commanding each brigade, about the likely requirements of the Reserve Defence Force as the situation continues to unfold.
Some reservists who have skills which are required in the Covid-19 response whose personal circumstances allow them to do so are already undertaking certain tasks on a voluntary basis. Many employers are likely to be very supportive of reservists participating in the Covid-19 response, should their services be required. I assure Deputies that I remain very committed to those who volunteer their service to the State now and at any other time. I cannot accept the amendments but I would like, at a later stage, to be able to pass such legislation. We need wider consultation, specifically with the Minister for Business, Enterprise and Innovation. We are often critical here about not having consultation. I do not believe that rushing such an amendment through the House would be the right thing to do on this occasion.
I do not have much more to add. If somebody told us two months ago that an international pandemic would be taking place, we would not have believed them. We have no idea what will happen in two months' time. There is a possibility that members of the Reserve Defence Force will be called up on active service and I think that, at the very least, they deserve to have their civilian jobs available to them when they finish their term of service. It is a very reasonable amendment and it is the very least that our brave Defence Forces personnel deserve. I will press the amendment.
Chris Andrews, Cathal Berry, John Brady, James Browne, Mary Butler, Jack Chambers, Catherine Connolly, Barry Cowen, Cormac Devlin, Pearse Doherty, Paul Donnelly, Stephen Donnelly, Francis Noel Duffy, Dessie Ellis, Noel Grealish, Marian Harkin, Neasa Hourigan, Claire Kerrane, Micheál Martin, Mattie McGrath, Michael McGrath, Imelda Munster, Jennifer Murnane O'Connor, Paul Murphy, Gerald Nash, Cian O'Callaghan, Jim O'Callaghan, Richard O'Donoghue, Roderic O'Gorman, Louise O'Reilly, Eoin Ó Broin, Aengus Ó Snodaigh, Eamon Ryan, Róisín Shortall, Bríd Smith, Duncan Smith, Peadar Tóibín, Robert Troy, Mark Ward.
I move amendment No. 57:
In page 26, between lines 12 and 13, to insert the following: “(e) in section 4(4), by the substitution of “each House of the Oireachtas” for “Dáil Éireann”.
(f) in section 4(5), by the substitution of “either House of the Oireachtas” for “Dáil Éireann”.
(g) the amendments to section 4 of the Defence Act 1954 shall lapse when the Covid-19 emergency is over. ”.
I move amendment No. 58:
“Provisions governing return of reservists to employment
26.(1) Where a member of the Reserve Defence Force as defined in the Act of 1954, (in this section referred to as the “reservist”) is called out on permanent service or in aid to the civil power, under the provisions of the Act of 1954, and such reservist was, at the time he or she was so called out, employed by another person (in this section referred to as the “former employer”) the following provisions shall apply:(a) on the expiry of the period during which the reservist was absent from work while called out on such permanent service or in aid to the civil power, the reservist shall be entitled to return to work as soon as reasonably practicable —(2) Where a reservist is entitled to return to work in accordance with subsection (1)but it is not reasonably practicable for the employer or the successor to permit the reservist to return to work in accordance with that subsection, the reservist shall, subject to provisions of this section, be entitled to be offered by the employer, the successor or an associated employer suitable alternative work under a new contract of employment.(i) with the employer with whom he or she was working immediately before the start of that period or, where during the reservist’s absence from work there was a change of ownership of the undertaking in which he or she was employed immediately before her or his absence, with the owner (in this section referred to as the “successor”) of the undertaking at the expiry of the period of the absence,
(ii) in the job which the reservist held immediately before the start of that period, and
(iii) under the contract of employment under which the reservist was employed immediately before the start of that period, or, where a change of ownership such as is referred to in subparagraph (i)has occurred, under a contract of employment with the successor which is identical to the contract under which the reservist was employed immediately before the start of that period and (in either case) under terms and conditions —(I) not less favourable than those that would have been applicable to the reservist, and
(II) that incorporate any improvement to the terms or conditions of employment to which the reservist would have been entitled,
if he or she had not been so absent from work.
(3) Work under a new contract of employment constitutes suitable alternative work for the purposes of this section if —(a) the work required to be done under the contract is of a kind which is suitable in relation to the reservist concerned and appropriate for the reservist to do in the circumstances, and(4) During a period of absence from work by a reservist who is called up on such permanent service or in aid to the civil power, the reservist shall be deemed to have been in employment of the employer or successor and, accordingly, while so absent, the reservist shall be treated as if he or she had not been so absent and such absence shall not affect any right, whether conferred by statute, contract or otherwise, and related to the reservist’s employment.
(b) the terms or conditions of the contract —(i) relating to the place where the work under it is required to be done, the capacity in which the reservist concerned is to be employed and any other terms or conditions of employment are not less favourable to the reservist than those of his or her contract of employment immediately before the start of the period of absence from work while on protective leave, and
(ii) incorporate any improvement to the terms or conditions of employment to which the reservist would have been entitled if he or she had not been so absent from work during that period.
(5) Entitlement to return to work in accordance with subsection (1)or to be offered suitable alternative work under subsection (2)shall be subject to a reservist who has been absent from work as a result of being called out on permanent service or in aid to the civil power having, as soon as reasonably practicable, notified in writing (or caused to be so notified) the employer or, where the reservist is aware of a change of ownership of the undertaking concerned, the successor or his or her intention to return to work and the date on which he or she expects to return to work.
(6) Where, because of an interruption or cessation of work at a reservist’s place of employment, existing on the date specified in a notification under subsection (4)given by the reservist, it is unreasonable to expect the reservist to return to work on the date specified in the notification, the reservist may return to work instead when work resumes at the place of employment after the interruption or cessation, or as soon as reasonably practicable after such resumption.”.
Chris Andrews, Cathal Berry, John Brady, James Browne, Mary Butler, Jack Chambers, Catherine Connolly, Barry Cowen, Cormac Devlin, Pearse Doherty, Paul Donnelly, Stephen Donnelly, Francis Noel Duffy, Dessie Ellis, Noel Grealish, Marian Harkin, Neasa Hourigan, Claire Kerrane, Micheál Martin, Mattie McGrath, Michael McGrath, Imelda Munster, Jennifer Murnane O'Connor, Paul Murphy, Gerald Nash, Cian O'Callaghan, Jim O'Callaghan, Richard O'Donoghue, Roderic O'Gorman, Louise O'Reilly, Eoin Ó Broin, Aengus Ó Snodaigh, Eamon Ryan, Róisín Shortall, Bríd Smith, Duncan Smith, Peadar Tóibín, Robert Troy, Mark Ward.
I move amendment No. 59:
In page 26, to delete lines 18 to 20 and substitute the following: “ “applicable period” means—
(a) the period of 12 weeks commencing on 26 March 2020, and
(b) such other period (if any) as may be specified by order under subsection (20);”.
My amendments, Nos. 59 and 68, are linked. In essence, those amendments provide that at the end of the 12-week period, the Minister would come back to the House and the House would make a decision on the continuation, amendment or otherwise of the wage subsidy scheme.
I also want to deal with the issue of section 26(2). This relates to the qualifying criteria for employers for the wage subsidy scheme. We all accept that it has to be workable. If it is not workable, the employers will lay off those employees, the employees will get €350 per week and that cannot be topped up by the employer. That is not where we want this to finish. We need much more detail and clarity on the question of how Revenue will assess the ability of employers to pay the wages of employees. Will Revenue just look at the cash resources the company has, for example? That company will have a range of other liabilities that will have to be met over a period of time. It could be that the business has enough resources on hand to pay six weeks, ten weeks or 12 weeks of wages. How exactly will this be assessed? Employers will not take the risk because the consequences for them of getting this wrong are potentially significant. Not only will they have to repay the money to Revenue, but there is also the potential application of interest and it is an offence to wrongly claim the wage subsidy scheme as an employer. Under the Taxes Consolidation Act 1997, an offence potentially means a fine and jail. Employers will not take a chance so that is why we need to have clear guidance on exactly how Revenue will assess the ability of companies to pay their employees' wages.
I want to echo the comments made by Deputy Michael McGrath on the guidance Revenue needs to provide. I am very concerned that the way this legislation is drafted means it could be open to abuse or misinterpretation by employers who would be entitled to it. Some of the amendments I am putting forward are done in the spirit of strengthening a scheme which I support and which I called for before.
Amendment No. 60 deals with the case that this should not be available to a class of employer that has been requested to close by the Minister as a result of the Covid-19 crisis. This has to be looked at in the context of amendment No. 70, where we propose to increase the pandemic unemployment payment to meet 100% of the net weekly pay of individuals up to €525. This wage subsidy should only apply to those who need to be in work at this point in time and who work in essential services. As the Minister knows, Sinn Féin's position is that non-essential services should be closed down and therefore, the pandemic unemployment payment should be available at a rate of 100% of wages, up to a weekly limit of €525.
Amendment No. 62 deals with the fact that we have conditions for eligibility for a company that has, for example, a 25% reduction in the number of orders. Yet many of these companies are able to pay 80%, 90% and close to 100% of their wage bills.
What we are now finding out - this is widespread - is that employees are being asked to go back to work. They are being told that they will get the 70% that the State will pay them but no more. This could be open to abuse. We have included a different threshold.
Amendment No. 66 is simply to ensure that this period would not be considered a break of employee service for the entitlement of redundancy further down the line.
Amendment No. 67 is about ensuring that any employer who uses the scheme to mass-produce during this period and then, after this period, lays off employees would be subject to an audit by the Revenue and would have the wage subsidy scheme and all the payments recouped by the Revenue. This is an example of where the State is subsidising nearly the entire wage bill of a company that could mass-produce during the coming 12 weeks. Then, when the demand is in the market after the crisis, it could temporarily lay off the workers because it has mass-produced. The workers would be in the same position they are in today. Yet, the company could make sizable profits as a result of the scheme. This should not be allowed. We should send out a clear direction to companies not to abuse something that we are trying to do in the common good. The idea is to support employers and workers at a time of mass crisis and a major health crisis.
The scheme as set out in the statute will operate as a refund scheme. Section 26(5) provides that following the notification by the employer of the payment of the salary to the employee the employer can contact the Revenue Commissioners and seek the subsidy. The only concern I have is that the Revenue, when it was assessing whether to pay the subsidy, will have to ensure that the employer qualifies and comes within the criteria set out in the legislation. Section 26(2) provides that the fundamental qualifying requirement is that the employer must be unable to pay the salary. My concern is that the Revenue may adopt a literal approach to statutory interpretation and argue that since the employer was able in the first instance to pay the employee the salary, then it would not suffer inability to pay. It may be beneficial to consider putting an amendment in the Seanad stating that inability to pay would arise save for the operation of this temporary wage subsidy scheme. I would be interested to hear what the Minister has to say in this respect.
The principle of the scheme is very good. It is like everything else: this is happening at great speed. It is a highly important measure. However, with speed comes a need for time to look through the detail.
I am seeking clarification on something that has come up during the day. I agree with Deputy McGrath. Section 26(19) provides that the Revenue Commissioners will publish guidelines. They have published transitional guidelines for the first couple of weeks. Detailed guidelines will be published shortly. It is critical that the detailed guidelines deal with these issues. Section 26(3) refers to a business being treated as being adversely affected in accordance with guidelines published by the Revenue Commissioners. A business must show to the satisfaction of the Revenue Commissioners a 25% reduction in turnover. Many of these matters can be addressed in the guidelines. The guidelines need to be highly detailed. They need to define what the Minister means by "inability to pay". That is causing a degree of concern among certain people. It might give rise to a question of being deemed to be insolvent. That can be defined in the guidelines.
There are other points of note. Section 26(5)(i) refers to how the employer will not be entitled to a deduction against corporation tax or profits in respect of any top-up paid. Can that be looked at in terms of the guidelines?
The Minister might clarify section 26 (1) (a) and (b), which refers to being able to file returns on time. I may have misinterpreted this, but my understanding is that this needs to be clarified in the detailed guidelines issued by the Revenue Commissioners. The manual P30 has to be filed by 15 March for February and the electronic one by 24 March. Are employers required to pay the relevant amounts? A recent derogation provided that no interest would be charged if PAYE and VAT were paid late. It is important that the guidelines issued by the Revenue Commissioners specify what is meant by inability to pay and how the 25% loss in turnover will be defined.
There is confusion around interest. It would appear that the guidelines state that the subsidy would not be subject to income tax when it is paid, but the employer would be required to tax it as an overall rate at the end of the year. That appears to be in the temporary guidelines from the Revenue Commissioners, and perhaps the matter can be examined before the final guidelines are issued.
I want to raise the points I made on Second Stage. I seek clarification on a number of aspects of the scheme. The scheme undoubtedly has many positive attributes and the Minister's intention is good, in terms of maintaining the link between employer and employee and encouraging employers to, where possible, keep employees on their books.
However, Deputies have highlighted a number of concerns. One is who determines the inability to pay clause. There are very serious penalties if someone is determined to have had the ability to pay but made the case that he or she was unable to pay. There is a worry there, and where that is the case there is a chance that some companies will opt to temporarily lay off staff and benefit from the €350 per week Covid-19 payment.
On Second Stage I raised the issue of SMEs which have a small residual liability with Revenue. I have been told that because of that they are prohibited from participating in the scheme. I do not think that would be fair. If it is the case, we would run the risk of putting more people on the Covid-19 payment through the Department of Social Protection. As the scheme is set out, there are cases where people in certain companies with a lower income will end up being financially better off than those on a higher income. I have been contacted by numerous companies, and have been told that there is an incentive to lay off people temporarily to enable employees to be entitled to the Covid-19 payment from the Department of Social Protection.
Deputy O'Donnell referred to the possibility of a liability. While the Revenue guidelines state there is no liability now, they stipulate that at the end of the year a review could be carried out and there could potentially be a liability. That is a worry for employers and I would like the Minister to address it.
I appeal to the Minister to take on board and accept many of these very sensible amendments because the proof of the pudding will be in the eating. As I said on Second Stage, the concept and principle of the wage subsidy scheme has much to recommend it. I again want to pay tribute to the trade union movement and the main employer body, IBEC, for their work on this and for persuading the Government of the merits of this income replacement approach, which is very expensive.
It is unprecedented in the history of the State and, therefore, we all need to be determined to make sure this works. It can work, but employers need to be absolutely confident of the merits of the scheme and that there are no pitfalls, inadvertent or otherwise, in it further down the line.
Earlier I raised issues that have been enunciated and articulated this evening by Deputy Michael McGrath and others, for example, how the 25% drop in turnover would be calculated. In terms of ability to pay, where a business may have €100,000 or €200,000 in reserve to invest in essential equipment or for work in progress which it might be obliged to have in its back pocket to allow for a project to be completed, I certainly hope Revenue would take the view that the business has sufficient cash to be able to pay its workers over the next short period of time to get it through this difficult period.
Helpful updated advice and guidance was published by Revenue this evening that has assuaged some of the concerns of businesses and some of the concerns that have been expressed to me in recent days by financial advisers, accountants and auditors who are being engaged by businesses to advise them through this difficult period. It beats me why that guidance could not have been developed and published a few days ago. This helpful guidance will encourage employers to take on this critical scheme for the future of business and working people in this crisis period.
I support all the Fianna Fáil amendments but my major concern is to do with the childcare sector. While I welcome the announcements by the Minister for Children and Youth Affairs, Katherine Zappone, earlier this week, a large cohort has been omitted. I refer to the owner-managers of the services, particularly with regard to full-time services and ECCE. I think it has to do with their tax Class S. I appeal to the Minister to accept the amendment that has been put forward by Fianna Fáil to the Bill in the Seanad tomorrow for the simple reason that it will allow such manager owner-occupiers to be able to claim a wage. They are part of the ratio. They make up the business. They have always received the subvention and been part of the drawings, but they have never been able to draw the wage. Now we need to support them, because they are the people who have taken the risks so that we have a service, to bring the staff back in afterwards. There is crisis and worry at present.
Not every employer is a company. Many employers are sole traders. Many of those sole traders have already fallen. Most small café shops are not companies; they are sole traders. Their employees are gone and so are they. They have closed their doors.
If one looks at what we propose for companies, for a banking sector such as the credit unions the regulation states that they must put so much away for a crisis. Companies must do the same because they must start back up when Ireland gets back online. We must look at it from the point of view that the employer must be protected as well as the employee. To start their business back up, raw materials coming into companies are in short supply. Companies trading currently are running out of materials to keep going to create jobs and keep people in work under the proper guidelines and yet they show that their productivity goes down by 25%. They are not covered under this Bill. Within the guidelines in place, we must allow for companies to restart and have the cash supports to do that. We cannot punish them through Revenue and Revenue needs to make it clear to employers and employees that they are protected. Earlier today we raised the point that people in part-time work currently, if they take the payment of €350 and they are only on €200 a week, must know the position.
Regarding people on part-time work at the moment earning €200, €300 or €400 per week who take the payment of €350, the form does not ask people what they are earning. The form states that a person should fill it in and apply for this payment of €350. There is nothing in the form asking a person what he or she is earning. This question is found in the form for a jobseeker's payment but the main form just tells people to put down their details and send it in. The form for a jobseeker's payment asks for a person's earnings but there is no question on the main form so how can the Government ask people in a job earning €200 or €250 per week to submit a sheet of paper that does not ask them for their details? We need to look at this properly and make sure the people who are taking the funding will not be in a position where they will have to repay this money afterwards. It is up to us, not them, to get it right.
I wish to raise two issues, one of which overlaps with the issue raised by Deputies O'Donnell and Troy regarding the Revenue guidance. It appears quite clear from page four of the Revenue guidance that the payments are not taxable whereas on page eight, it says that it is subject to taxation at the end of the year so could the Minister clarify that matter?
Regarding amendments Nos. 59 and 68 put forward by Deputy Michael McGrath, while I respect and appreciate the need for the Minister to have at his disposal the power to vary this legislation as the emergency evolves and as he sees the need to do so, I am conscious of the fact that after tomorrow and indeed next week and beyond, the Government's powers are quite limited with regard to consent from the Oireachtas regarding issues that arise. I know Deputy Michael McGrath made the same point about the €3.7 billion that is provided. How far beyond the €2.4 billion already committed does that go if it goes any further at all? I know we have a surplus in this year at our disposal. We have the ISIF funding, the NTMA stockpiling, reserves, the rainy day fund and so forth but there comes a time when one goes beyond all that. There comes a time when a budget may well be necessary. There comes a time when this Oireachtas needs to provide for what is needed and that may not be possible without a Government in situand a functioning majority. I do not know what the Minister said regarding this issue on Second Stage but I do not think he necessarily addressed the amendments that have been suggested. Perhaps he will elaborate on his thoughts on those amendments with the opportunity he now has. It may well be that he can give a commitment to the House that it is feasible, possible and within his powers to bring back an update to the Dáil at that stage on the 12th week that would get the consent of the Oireachtas at that time. If it was such that we were going beyond the figures we have mentioned and there was a need for a budgetary process, obviously, what happens in the intervening period might look after that issue and the Minister for Finance of the day would address the Dáil at that stage. As public representatives, we feel that we cannot on a wing and a prayer allow with no provision for what might be needed. It is dependent on the consent of us as representatives of the people that this be the case. If the Minister cannot accept and feels he is constrained by the amendments, could he explain to the House how best he sees us being in a position to be satisfied, that being the case?
This is of paramount importance to SMEs, sole traders and businesspeople because they must have some kind of certainty. We all understand the predicament the Minister is in but we need a review mechanism and some certainty. Could the Minister clarify matters in his remarks? People are worried and we are getting lots of phone calls because they do not know where they stand and do not know the impact it will have on their finances. We will need to kick start the economy and these are the people we hope will survive, put their shoulder to the wheel again and be brave but they need clarity around this because the longer it goes on, the less clarity there is.
Could I get your guidance, Acting Chairman? Deputy Doherty, in particular, referred to a number of different amendments in his address. Do you want me to respond to his comments on all of the amendments?
You are very good. Some really important issues have been raised by Deputies Michael McGrath, Doherty, Cian O'Callaghan, Nash, Rabbitte, O'Donoghue, Cowen, Mattie McGrath, O'Donnell and Troy. I will respond to each of them in turn, but I want to give some context. This was prompted by something Deputy Nash said. He said it would have been very helpful to have this guidance available earlier in the week. The truth of it is that we were moving so quickly in putting all of this together that the legislation itself only took shape over the weekend and as we moved into Monday, let alone moving on to the issue of guidance. The reason this speed was necessary is because I have the highest level of concern that in the absence of an intervention like this being made available by the Dáil and the Government, the unemployment situation our country could face into could be exceptionally grave.
Deputy Doherty has made some points about risk regarding this scheme. He is accurate in calling out that there are risks with an intervention on this scale. I will say a word about each of his amendments in turn. I addressed this issue when I spoke to the Cabinet on Tuesday and when I launched the scheme on Tuesday afternoon. While the risks are great regarding how some of this scheme could be interpreted, two issues are important. The first one is the ability of the Revenue Commissioners to implement this scheme as the Oireachtas intends and as I as Minister for Finance intend. The second point is my very strong judgment that in the absence of the Oireachtas intervening in the income of many workers, a very large number of jobs will be at risk in our country. That is why, as conscious as I am of the risks – I know what they are – I do believe this intervention is needed for an emergency period to ensure that by investing in income we give the greatest number of companies possible the chance of surviving the period ahead. I want to be open with this Dáil and with all the Deputies that have raised this point. Behind each of the points they raise, they are correct in identifying a risk.
Deputy Cowen asked for a breakdown of what was leading to the Exchequer commitments that I outlined earlier in the week. As I said in my Second Stage speech, if the public health crisis is allayed and if the economic effects are not as damaging as we fear, it is entirely possible that the figures I have spoken about could be less. It is equally possible that the figures that I have outlined could be higher. They could be higher because of the public health emergency to which our country could have to respond. I am explicitly saying this to the Dáil because I do not want to be in a position where, having addressed this issue, in a period of time ahead I am either speaking as a member of the Opposition or a member of Government querying the budgetary rationale that underpins this measure. We have used our best judgment to put together the rationale for how much we believe it would cost, but it is based on a time of great uncertainty. It is because of that uncertainty that there is a need to intervene in income.
I will address some of the points that have been put to me in particular questions that have been raised.
The first one regards guidance from the Revenue Commissioners to address many of the questions raised by Deputies O’Donnell, Nash, Jim O'Callaghan, Cowen and others. That detailed guidance was published tonight. There will be a need to revise it. There will be a need to look at how it can be made clearer. Now that this guidance has been published, I encourage those companies contacting Deputies to go directly to the Revenue Commissioners and raise their questions directly with them. In the guidance, the Revenue Commissioners have published and the way they will be addressing this issue in the coming days, they will be saying that they do not believe professional advice is merited to understand this guidance. They will engage with companies directly to reach pragmatic solutions on approaching issues as quickly as they can.
Deputies Michael McGrath and Cowen raised the issue of the flexibility open to the Minister of the day, the interpretation of the scheme, how it can be varied and so forth. In normal times, I would completely agree with the points made by Deputies Michael McGrath and Cowen about the need for the Minister to be continuously accountable to the Oireachtas about the different issues raised. Given the period that we are moving into and the nature of the public health emergency that is under way, it is imperative that the Minister has the ability to vary the scheme. Some of the rationale for that was articulated by Deputy Ó Broin in the debate on earlier amendments. If I was in such a position, I would believe it incumbent upon me to explain my rationale and to engage with Opposition parties during that time to ensure they understood why it was being done. However, because of the public health emergency we are moving into, I believe that kind of flexibility is needed by the Minister.
On the questions put to me by Deputy Doherty, I acknowledge the risks he raised are real. They have been considered by me and the two Departments which have worked on this scheme with great care over the past several days. My recommendation to the House is that, as real as the risks the Deputy has outlined are, the lack of an intervention of this breadth could generate a national risk in terms of the numbers of people who will face a real threat to their jobs beyond the tens of thousands of our citizens who are already reliant on the pandemic payment. I know the Deputy does not want to see that happen. I do not want to see it either. He acknowledged that in his broad support for the Bill, notwithstanding the specific concerns that he has.
The reason for not accepting amendment No. 60, beyond some of the rationale I referred to as Minister for Finance, is that many of the powers that Deputy Ó Broin is asking that I should have, I would not have anyway. They do not sit with me but with other Ministers. It is possible across the coming period that there will be businesses which will be open, although in a limited period, which will be participating in the scheme. That is entirely possible. It would be quite positive if that were to occur because we could have companies which would be open and which may be employing their employees in a different way. They would be open and would be providing a service in a community selling a good. They would be doing so enabled by this scheme. The likelihood is that if the scheme was not available, the company would not be open or, if it was, it would not be employing the number of employees in the way that it otherwise would be.
I will accelerate and try to get them done. Very quickly, on amendment No. 62, the particular requirement that the company does pay and has the ability to add to the subsidy made available to the State, in normal times I would completely agree with Deputy Doherty. I think, unfortunately, it could be very possible that there will be even more companies in the future that will have a very low level of income coming in because demand for their goods or service has evaporated which means they are not in a position to add to the subsidy. I would ask the Deputy not to put in place a requirement that the subsidy has to be added to because while it is what I want to see happen, my view is that if the Deputy were to make it as stringent as it is in his amendment it could undermine the ability of the scheme to operate. For that reason I ask him to consider withdrawing the amendment he has tabled in line with amendment No. 66.
In respect of Deputy Jim O'Callaghan's questions, we would define wages as normal wages, the company's inability to pay normal wages. In the guidelines they are publishing the Revenue Commissioners will put a time period against which those normal wages will be judged and will thereby be able to say, if they are not able to pay normal wages, how we define normal in the first place. In respect of Deputy Nash's questions, he has been good enough to acknowledge that the guidance does cover off several of those points. I ask Deputy Rabbitte to consider the issue her party is raising in the Seanad tomorrow morning. I know it is a very important issue and that there are many in the childcare sector who want to see this issue clarified but if this amendment is accepted in the Seanad tomorrow, this Bill needs to come back to the Dáil. If it does come back to the Dáil, the Revenue Commissioners cannot make payments available as soon as next week. If the Deputy is weighing up this matter I ask her to consider the real value of this scheme being operational next week.
In response to Deputy O'Donoghue, I accept what he says but we are hoping that through the supports available from the Department of Employment Affairs and Social Protection we will be able to support those who are self-employed in a comparable scheme but it will be administered through that Department as opposed to the Revenue Commissioners. I think the detailed guidance offered by the Revenue Commissioners will address many of the issues Deputy Mattie McGrath has raised. In response to Deputy O'Donnell's question about how a decline in turnover will be judged, that will be by looking at what the expected turnover will be for quarter 2 of 2020 and comparing that with likely turnover for quarter 1 or, if appropriate, quarter 2 of 2019. In response to Deputy Troy, this scheme is based on net wages. The idea is that it will maintain 70% of the net wages that an employee would otherwise get after paying tax. Yes tax liabilities will be generated during the year in respect of this and the Revenue Commissioners will have to engage with every company to ensure that this is managed in a way that is fair and understood by all. The Revenue Commissioners, through the guidance they have issued tonight, and through the wide engagement they are having at the moment with accounting bodies and employers will, I hope, be able to clarify all of that. I believe in the absence of an intervention like this, the risk is very high. If this scheme is accepted by the Dáil tonight and the Seanad tomorrow, it can play a very important role in keeping people in jobs which they would otherwise not be in.
Be under no doubt that this is an emergency scheme, which will need to come to an end. The costs are sustainable for a period of time but they are not sustainable indefinitely. It will fall to a future Minister to conclude this scheme.
I thank the Minister. We all appreciate that this is being done at breakneck speed. We appreciate the objective, which is laudable, and we all want to work towards its achievement, of having a wage subsidy scheme that retains employees on the books of businesses rather than going for social welfare payments. What Revenue published online tonight, as far as I can see, is 13 pages of frequently asked questions. It refers to soon to be published detailed guidelines. When will we have the detailed guidance? The questions that we are being asked and which we are asking the Minister can hopefully be answered in those detailed guidelines. On the question of the inability to pay, there are real issues which we expect will be answered in those detailed guidelines. Deputy Nash raised the point that businesses could set money aside for things they really need to do and investments they really need to make in plant, equipment and so on. With regard to an unincorporated business, a self-employed person who employs others, will Revenue just look at the business accounts of that self-employed person or his or her personal accounts? These are real issues and employers will not take the risk because the consequences of making a declaration that Revenue ultimately finds to be unwarranted means a refund of that money, interest penalties, and a potential offence under the taxes legislation. Many experts are already advocating for people not to apply for the scheme. That is not what we want to happen. We want to retain this connection.
This has really been rushed through. We welcome support for workers and employers and keeping that connection with the employer. That is accepted. Our view is that there should be two different schemes. One should be for workers who are not producing, at home and not providing to the company. They are basically not working but still connected to the company, which is what the pandemic unemployment payment is for. It should be 100% of net wages up to €525. The second part should be this type of scheme, where workers are in production, working, producing and making profit for the company, even at a time of very low demand. That should require the company to pay a proportion. What I am putting forward today is trying to minimise the risk. I am very conscious of the amount of resources that we will need as a State. This is only in the ha'penny place, compared to what will be required to deal with the health crisis and economic crisis, and the stimulus package that will be needed to restart our economy and support all sectors, from community to charity, from agriculture to sport, and every different sector that will need support in this period. The guidance refers to average weekly earnings from January to February. If somebody was getting €400 in January and February, that person is now left unemployed because the company could not pay €400. The company now says that it will get 70% of that and so is reducing that person's wages to 70%. The person is back working and producing for the company. The company says that it will then mass produce. Since there is only so much demand in the economy in the future, it will probably lay the person off anyway, like any factory would do in a normal environment when it has more stock than demand requires. This is about trying to reduce some of the risks so that we have more resources to deal with other issues that will require resources.
Deputy Michael McGrath presents the concept that the presence of cash reserves would in some way debar a company from participating in the scheme. I do not believe that will be the case. I think it is very possible that companies will have cash reserves, precisely for the reason the Deputy refers to, that they have costs coming up that they know they need to meet.
I will be relying on the Revenue Commissioners to implement that. I am confident that they will. For the benefit of all Deputies, I want to say on the floor of the House that the only organisation to decide who will be included in the scheme, how they will be evaluated and what subsidy they will receive is the Revenue Commissioners. The only organisation any companies or practitioners that have views regarding who should be included in this scheme once it is up and running should contact is the Revenue Commissioners. It is appropriate for such companies to come to Members of the Dáil with questions about policy but they should not come to Deputies with questions about the operation of the scheme but rather to the Revenue Commissioners. Such companies can deal with them.
The risk that Deputy Doherty described exists. We increased the pandemic payment to €350. We did so because those who are without work due to this virus should not be forgotten about at a time when we are introducing a scheme to keep more people in work.
I move amendment No. 60:
In page 27, line 10, to delete “and” and substitute the following: “(c) the business, or class of business, of an employer has not been requested to close by the Minister for the purpose of preventing, limiting, minimising or slowing the spread of Covid-19 or to deal with public health risks arising from the spread of Covid-19, and where an exception has not been made for that employer by the Minister, and”.
I move amendment No. 62:
In page 27, line 16, after “commerce” to insert the following: “they are unable to pay to a specified employee 70 per cent of the net weekly emoluments that would have otherwise been payable, or some lower percentage as considered appropriate by the Minister or”.
I move amendment No. 63:
In page 27, between lines 28 and 29, to insert the following: “(d) the employer has demonstrated that income has been redistributed from high to low wage employees where possible as a means of continuing to pay salaries through the emergency period.”.
I move amendment No. 66:
In page 29, between lines 17 and 18, to insert the following: “(7) Any period of time during which the wage subsidy provided for by this section is in payment shall not be considered a break in the employee’s service.”.
I move amendment No. 67:
In page 30, between lines 19 and 20, to insert the following: “(16) Where an employer fails to retain a specified employee for a period of 12 months after 30 June 2020 for reasons related to the temporary wage subsidy, the employer shall be liable for penalty.”.
Chris Andrews, John Brady, Catherine Connolly, Pearse Doherty, Paul Donnelly, Dessie Ellis, Claire Kerrane, Imelda Munster, Paul Murphy, Gerald Nash, Louise O'Reilly, Eoin Ó Broin, Aengus Ó Snodaigh, Bríd Smith, Duncan Smith, Mark Ward.
Cathal Berry, James Browne, Peter Burke, Mary Butler, Jack Chambers, Simon Coveney, Barry Cowen, Cormac Devlin, Stephen Donnelly, Paschal Donohoe, Francis Noel Duffy, Bernard Durkan, Damien English, Charles Flanagan, Noel Grealish, Neasa Hourigan, Heather Humphreys, Paul Kehoe, Josepha Madigan, Micheál Martin, Mattie McGrath, Michael McGrath, Michael McNamara, Jennifer Murnane O'Connor, Cian O'Callaghan, Jim O'Callaghan, Kieran O'Donnell, Richard O'Donoghue, Roderic O'Gorman, Neale Richmond, Eamon Ryan, Róisín Shortall, Robert Troy.
Will the Minister clarify the treatment of the wage subsidy scheme for employees who live across the Border, in particular those who have been temporarily laid off and perhaps taken back onto the payroll of their employers? Will they be able to avail of this scheme? The Government and its Ministers will be aware of this issue and I heard the Minister, Deputy Humphreys, address it in regard to the pandemic unemployment payment. As somebody who comes from a Border constituency, I know we have had a huge number of representations in regard to people who are working in the Twenty-six Counties but who live across the Border and are not able to avail of the pandemic unemployment payment, despite the fact they are paying their taxes and PRSI, and contributing to the economic well-being of this jurisdiction. This is very harsh, given there are many such cases.
With regard to section 27, which is connected because it affects the childcare sector, the scheme supports workers and parents but does not support those manager-operators who have provided the service and who were basically employees, but never classed themselves as employees. The smaller operators are hammered under this scheme. To give one example from my own neck of the woods, a service which caters for some 15 children will get support of just €34 per week to cover the wages of the manager, who is the main childcare provider, and all the running costs of the service. That service is not unique and there are many others. Unless this issue is dealt with quickly, these individuals will close their doors and will not be able to reopen. As we talk about a multi-billion euro support for workers and employers, it is crucial we are in a position to sustain the childcare sector, in particular those rural childcare sector providers that do not have the number of employees to allow them to get that large quantity, based on the 15%. It is also crucial that the managers, who are employees but never classed themselves as employees, are also supported during this period.
I want to make several points on the section. On Second Stage, I raised section 26(8), which concerns the publication by Revenue online of the details of the employers who are going to avail of the wage subsidy scheme. I do not see the necessity for that and think it should be removed. When I looked at the Revenue's "frequently asked questions" tonight, one of the questions asked is why the details of the employers are to be published online, and the answer is that it is because it is stated in the legislation. We are in charge of the legislation and I have yet to hear an explanation as to why the details of those firms need to be published. I do not believe it relates to state aid because those requirements have essentially been set aside at European level in the context of the response to the Covid-19 emergency. I think it will become something of a blacklist or could be viewed as such. For example, competitors or firms which are considering credit terms subsequently, when we all get back up on our feet as an economy, will say that firm was not in as strong a position as was thought.
I do not think it is necessary, it is unfair and the Minister should remove that subsection. I do not see how it impacts on any other aspect of the Bill.
Turning briefly to some other points, regarding one of the other qualifying criteria for employers, the one requiring the 25% reduction, either in turnover or in customer orders, it is for a defined period from mid March to the end of June. What is the reference period? To what is that period being compared? We need to be crystal clear regarding that issue.
On the question of taxation treatment, I said earlier that I thought it was very clear. It is based on net wages and therefore the subsidy element is not taxable. There is, however, that statement in the earlier Revenue publication which referred to the subsidy being liable to income tax and USC on review at the end of the year. That appears to be contradictory.
It is a worthwhile intervention. I ask that the publication by Revenue tonight be for a transitional phase. That is the phase up to early April. I ask that Revenue publishes the detailed guidelines as quickly as possible and deals with the specific details we have raised tonight. I refer to quantifying how that 25% will be measured and the ability to pay. In many cases, the guidance of accountants and tax practitioners will be followed.
The issue that it would be worthwhile to consider concerns a control mechanism. Employers are required under this scheme to make a return where they have to show the calculations regarding how they came up with the net wage. I would have thought it would have been relatively straightforward, under this scheme, that employees could be made aware, through the Revenue Commissioners, as to how much they are entitled to be paid under the subsidy. That would give an element of control over the subsidy and the exact amount making its way directly to the employee.
This is a worthwhile measure. The most important thing now concerns any element of confusion. This was mentioned by the Minister earlier. To borrow a phrase from the Minister for Business, Enterprise and Innovation, Deputy Humphreys, speed is often more important than perfection. We now have to ensure when the detailed guidance comes out from the Revenue Commissioners, as quickly as possible, that it takes away any area of confusion. I state that because this is a very beneficial scheme. This will ensure the link is maintained with employers but, more particularly, that people can be paid a living wage.
I thank the Ceann Comhairle. I have not. II ask the Minister for a quick clarification on the interaction of the wage subsidy with the working family payment. I would like to clarify if families, where one member is in receipt of the wage subsidy, will be able to maintain the working family payment.
I thank all of the Deputies. The answer to Deputy O'Gorman is "Yes". Regarding what Deputy O'Donnell asked, we expect that the detailed guidance for the scheme will be published by the Revenue Commissioners in the coming days. It will build on what has been published this evening. On the questions put to me by Deputy Michael McGrath concerning the publication of names, the reason the legislation will be indicating whether the names of companies should be published is that we want to ensure the subsidy being made available is passed on in full to the employee. This is a massive intervention by the State. The whole purpose is to say that supporting the income of a worker will allow a job to be kept. It is my view that one of the clearest ways we can do that is by indicating to employees of companies that their company is on the scheme and that the subsidy the taxpayer is making available should, therefore, be fully reflected in their salaries, in their wallets and purses.
Companies that emerge from the Covid-19 public health crisis we are going through, and I am confident the vast majority of Irish companies will do so, will have shown themselves to have withstood a far greater competitive pressure than their names being published by the Revenue Commissioners for looking for support from the Irish taxpayer to keep people in work.
On how the decline in turnover will be measured, the Revenue Commissioners will define what the base period would be. A likely base period would be based on how a company's turnover compared with the same period a year previous. It will be open to the Revenue Commissioners to work with companies to determine this each day.
On the other questions and details that have been put to me, I will either handle them directly with Deputies or the ones that are technical will be dealt with in the detailed guidance from the Revenue Commissioners.
Amendment No. 71 is in the names of Deputies Howlin, Kelly, Nash, Sherlock, Ó Ríordáin and Duncan Smith. Amendments Nos. 71 to 73, inclusive, are related and will be discussed together.
I move amendment No. 71:
In page 31, to delete lines 24 to 28 and substitute the following: “ “12A.(1)(a) Section 12 shall not have effect during the emergency period in respect of an employee who has been laid off or kept on short-time due to the effects of measures required to be taken by his or her employer in order to comply with, or as a consequence of, Government policy to prevent, limit, minimise or slow the spread of infection of Covid-19.
(b) Where an employee’s period of service is interrupted for any period by reason of the employee having been laid off or kept on shorttime for the reasons referred to in paragraph (a), continuity of employment shall not be broken by such interruption.”.
The amendment seeks to make it clear that the employee's continuity of employment is not interrupted by a period of short time or temporary lay off of any duration. That is for the purpose of calculating entitlement to redundancy if that is the outcome for the employee at some later stage.
I want to go back to the point Deputy Doherty made about cross-Border workers. For the second time, that question has not been addressed or answered. I asked about this in an earlier contribution as well. It is not the subject of these amendments but it is an important point.
I am speaking to the amendment. Amendment No. 72 is important regarding redundancies. This change in legislation is effectively putting redundancy payments on hold for the duration of the emergency period, which runs up to 31 May in this legislation. There is a genuine fear that there will be a break in reckonable service. I have a number of people get in contact with me who have been let go. One man who has 20 years' service with the same company has been made unemployed and has signed on for the Covid-19 payment. The fear is that if and when he is taken back on, he could be let go at any point within two years without being entitled to any redundancy and if he is let go at any point in the future, if there is a break in service, it would only be that portion of service after the break that would be deemed as reckonable service. The Sinn Féin amendment, which is similar to amendment No. 71 from the Labour Party, would amend the legislation to ensure the break is not deemed as a break in service for the duration of the Covid-19 emergency. If one looks at the redundancy, there are a number of provisions that will allow for breaks in service but it does not have an impact on redundancy issues such as maternity leave, parental leave, carer's leave, etc. It is a reasonable and fair amendment.
It makes sense to suspend the operation of section 12 of the Redundancy Payments Act 1967. However, the purpose of our amendment is that when one looks at subsection (2), it allows the Minister to extend that suspension period from 31 May onwards. What we are seeking to do with the amendment is to say it can be extended beyond that but it can only be extended for a period of up to three months. Without this extension, it means employees' rights can be negated for a longer period of time and that should not be the effect or intention of this legislation.
On the questions put to me by Deputies Nash and Brady, the existing provisions in Schedule 3 to the Redundancies Payments Act 1967 already provide that periods of temporary lay-offs do not break continuity of employment.
This will obviously include temporary lay-off periods due to the effects of the measures required by an employer to comply with, or as a consequence of, Government policy to prevent, limit, minimise or slow the spread of infection of Covid-19. I hope that answers the questions that have been raised with me by the two Deputies.
Deputy Jim O'Callaghan asked a further question. I might have to get clarity from the Deputy because the amendment appears to be quite different to what I understood it to be. Is the Deputy referring to the amendment put forward by Deputy Willie O'Dea?
Deputy O'Callaghan is correct. The Deputy may be aware that the emergency period is defined in this section as ending on 31 May. If there is no need to extend the emergency period beyond then, the Government will not do so. I call on the Deputy to consider that in deciding whether to put forward the amendment.
The time permitted for this debate having expired, I am required to put the following question in accordance with a resolution of the Dáil of this day: "That in respect of each of the sections of Parts 7, 8 and 9 undisposed of the section is hereby agreed to, the Preamble and the Title are hereby agreed to in Committee and the Bill, as amended, is accordingly reported to the House, Fourth Stage is hereby completed and the Bill is hereby passed."