Michael McDowell (Independent) | Oireachtas source

There can be situations where there have been proceedings before a court, the court has never heard the evidence on either side, it has made no decision, and the proceedings have been terminated on the basis of a private settlement, as happens in 90% to 95% of cases. They do not be heard, adjudicated on or whatever. Let us be clear. We are dealing with a proposed provision in a Bill which will say that if a case is the subject matter of proceedings, whether the proceedings went to trial, whether a court ever heard the evidence in the case, whether there was a confidential or non-confidential settlement, or whether payment was made or reinstatement was agreed, all of that is put outside the boundaries of what an Oireachtas committee can ask the chairperson to do. That is what that subsection says in plain black and white, and it is unambiguous. It is not as if there are two views of it. It is clear that if the case has merely been the subject of court proceedings, that is, not a court adjudication or determination, the chairperson may not be required to give an account under the rubric of general administration of the office, which is a serious matter.

This duty to appear before an Oireachtas committee is confined to the chairperson. What happens if the chairperson has resigned or is not in office? Under my reading of the legislation, the Minister is then obliged to appoint a lay person to be chairperson of the commission, and that must go through the public appointments procedure. As I see it, there is no provision for a vice-chairperson or somebody else to act as chairperson in the absence of the chair. Section 15(3) states:

At a meeting of the Commission—(a) the chairperson shall, if present, be the chairperson of the meeting, or

(b) if and so long as the chairperson is not present or if that office is vacant, the other members of the Commission, as the case may be, who are present shall choose another one of its lay members to be chairperson of the meeting.

The chairperson of the commission, however, is different. The commission cannot appoint somebody to be chairperson of the commission pending the appointment of a successor. If the office stands vacant, it appears that section 22 - the accountability provision - goes into suspension as the only person who is competent to be brought before an Oireachtas committee is the chairperson of the commission. It is not somebody who is casually put in as chairperson for a particular meeting.

Section 14(1) states, "The Minister shall not make an appointment under this section unless a resolution approving the appointment has been passed by each House of the Oireachtas." When one examines section 12(2), one realises that what happens is "The Public Appointments Service shall recommend a lay person for appointment by the Minister as chairperson following a selection process held by the Service for that purpose." If the position of chairperson lies vacant, the Minister cannot appoint somebody else to act as a stand-in and he or she cannot say that person will be the acting chairperson for the purposes of section 22 until the Public Appointments Service has conducted a recruitment campaign, made a recommendation and the matters have come before the Oireachtas for approval. Until then, the Minister cannot anoint anybody to be the person who is to be accountable under section 22, which I believe is a serious lacuna. If, for whatever reason, the chairperson resigns, falls under a bus, is removed or whatever, no accountability exists for somebody who possibly was not even there when any of the things the committee might want to ask him or her about happened, such as how in the name of God did the commission do all of this? He or she will say that it all happened before he or she was recently appointed to the position. It appears that there is a serious lacuna in how the matter is drafted. There was careful scrutiny of many portions of this Bill in the Lower House and in committee, but it appears to me there must be provision for somebody to be appointed by the Minister to be chairperson until that vacancy is filled - from the lay members if that is what the Minister insists on, which he knows I am against. There must at least be some kind of provision of that kind or else accountability is frozen while the chairperson is absent or the job is vacant, and section 22 ceases to operate.The only circumstances in which section 22 can apply is if somebody else is appointed following a meeting of the commission, a nomination by the Minister - presumably with the say-so of the Government - and the holding of a debate in the Oireachtas on whether the person is suitable. Is that person then to come in and account for the general administration of the body during a period when he or she was not even a member? That would be very strange.