Alice-Mary Higgins (Independent) | Oireachtas source

I support amendment No. 29. I too have several amendments in this grouping. I do want to be pointlessly combative and insist on corrections of the record but we need to stop saying things that are not in the Bill. For example, the Minister just said it is going to be an open application process where everyone can apply. That is not in the legislation. Let us not call it an open system to which everybody can apply if it is not stated in the Bill. We have no idea what the system is going to be, frankly.We do not know that everybody will be able to apply or how it is going to be structured because the procedure is not set out. Simply saying that we are moving away from the panel system and using the word "outdated" to describe it when there has been no proper analysis or justification of exactly why it is outdated is not good enough. That should be done at length, with proper scrutiny by a committee and the Houses, if one is making a fundamental change to how a board is appointed. That system has been truncated. Statements are going on the record suggesting that a new process is coming into place under which everyone will get to apply and it will be an open competition, but that is not what is in front of us. We know that the Minister "shall establish a suitable independent, objective, and transparent procedure". Adjectives are good and have a role in legislation, but adjectives alone do not make legislation or a procedure. This procedure "may include the establishment of a committee". Maybe it will made up of three people the Minister picks or the Minister will pick the people and recommend them to himself. Who knows? There may or not be a panel and there may or may not be a committee. It is extraordinarily vague.

The Department is rushing this legislation. It is one thing to rush legislation and another when it is not even fully written or when the Minister of State does not even know enough to commit and say what the procedure will be. Frankly, we should not be asked to rubber-stamp and rush through a Bill that says, effectively, I will think about it. Normally when we provide for powers to make regulations and so forth, it is subject to many caveats. We know exactly what powers we are being asked to transfer from the Oireachtas to the Minister. We do not know what the Minister is asking for in this case. He is asking that the Minister should be able to make up a procedure. That is extraordinary. With respect, recognising the issue on the interim chair and so forth, if legislation had been brought forward on that, it is an example of how this Bill is not ready or complete. We simply cannot simply sign off on legislation allowing the Minister to make things up in the future.

The procedure may or may not include the establishment of a committee and applications will "be invited from suitably qualified persons". That is not an open competition where all can apply. It may be an open competition or it may be an extremely narrow pool. A panel of candidates will "be prepared" but we do not know who will prepare this panel of candidates. It may be a committee or it may be some force in the universe that will prepare this panel of candidates, after which the Minister will be informed and a recommendation made. Again, however, the Bill does not specify who is inviting the applications, putting in place the panel of candidates, informing the Minister or recommending to the Minister because there is not even a commitment to establish a committee. I support the other amendments to this section. I will oppose the section because it is appallingly under-prepared. To replace a system, the removal of which has not been justified, with something that has not even been fully defined is poor law and legislative practice. Nonetheless, I have tried to constructively engage and make suggestions that could at least improve the process and make it somewhat better legislation in that regard.

Amendment No. 31 seeks to provide that, in the new subsection 2 of section 106, committees shall be established by the Minister. It is a small thing, but at least then there would be a committee that shall be established and perhaps that committee may perform the functions set out, which are currently unattributed in the Bill. It is a simple amendment to replace "may" with "shall". My amendment also seeks to ensure that it shall be an independent committee. That is reasonable, given the functions and the fact that we do not know the procedure. At least there would be a guarantee that the procedure will be overseen by an independent committee. That is a basic copper-fastening of the independence; otherwise, it could be five people or it could be the Secretary General of the Department who prepares this. Who knows? There should be a committee that is independent. At least, if there is ambiguity in the procedure, we will know the procedure will be administered in an independent way.

Amendment No. 32 is an attempt to safeguard against the dangerous overreach in this section. The amendment seeks to insert a new subsection 3A into section 106, which would provide that the regulations referred to in subsection (3) regarding the establishment of the committee would require Oireachtas approval before having legal effect. Given that we are not being presented with the procedure in this Bill, it is reasonable that the procedure and regulations would come back to the Oireachtas for approval so at least, even if we have not been told what we are being asked to sign off on now, there will be another opportunity for Oireachtas approval. That is something no Government should shy away from, especially if it is interested in transparency. The Government has the numbers, but it would ensure that the procedure was discussed within the Oireachtas and we were able to respond to what the procedure might be in the regulations.

Amendment No. 34 seeks to amend the amendment to section 106(4) proposed in the Bill by removing the provision that applications would be invited from suitably qualified persons for appointment as an ordinary member and replace it with a provision that applications would be sought through open public invitation for appointment of ordinary members of the board. There previously was system where nominations came from the panel system. We knew where nominations came from. Now, we do not know who will be suitably qualified persons. The Minister of State has just told us that it is going to be an open public competition that everyone can apply for. My amendment would state that it is an open public competition which everyone can apply for. Given that my amendment delivers what the Minister of State has already claimed will be the procedure, why not insert it?

Amendment No. 30 is a fundamental amendment. If there is not going to be a known system for nominating particular expert candidates, there should be an open competition, as suggested. The Minister of State stated he would prefer to move to an open competition.

Amendment No. 35 seeks to delete the provision in section 6 which provides for the deletion of subsections 106(6) to (8), inclusive. Subsection (6) provides for scenarios where nomination is not made under the existing subsection (4). Subsection (7) provides for the committee which oversees the recruitment process for ordinary members of the board. Subsection (8) provides for circumstances in which a request is made under subsection (4) and the organisation to which the request is made fails or refuses to nominate the number of candidates specified in the request. Amendment No. 35 is lengthy but basically seeks to ensure consistency with the earlier amendments to restore the panel system and protect the safeguards attached to the panel system.

Amendment No. 36 is not being moved.

Amendment No. 37 operates to disqualify acting or recently retired civil servants from being considered as ordinary members of the board to preserve independence and the appearance and perception thereof.

Amendment No. 38 seeks to delete the new proposed subsection (9), which would provide that the Minister may make regulations as regards any matter which the Minister considers expedient for the purpose of this section. The Minister is going to make up a process and we do not know what it will be. We know some of the adjectives the Minister hopes to apply to the process but we have no idea what the procedure will be. This subsection goes further again because it also states that the Minister can make regulations on any matter. It is not just a paragraph on planning and the board but addresses the relationship between the Legislature and the Executive - the Government and Parliament. We give powers to make regulations. When we are asked, as the Oireachtas, to transfer regulation, that is going from our primary law-making role and transferring it into the secondary function of regulations, we need to know what we are being asked to transfer. We have often agreed to do this.I have no problem with the principle of transferring the power to make regulations but usually we are talking about regulations in relation to specific issues and matters and we have an understanding of what those regulations will be and what they will be trying to address. In this case we are talking about regulations as regards any matter the Minister considers expedient for the purposes of the section. It is exceptionally broad and inappropriate and is not good legislative practice. Such carte blancheprovisions should not be included in a Bill which already gives quite drastic discretionary powers to the current and any future Minister over the processes, procedures, workings and regulations of a body which is required, intrinsically, to be independent.

Amendment No. 39 seeks the deletion of the word "expedient" and its substitution with the word "necessary" in the proposed replacement for subsection (9) of section 106 of the Act of 2000. Expedient is not appropriate language. The Oireachtas should not be giving powers to the Executive to expedite important processes which require care and scope for due process. "Necessary" is a better word as it allows the Minister to address the necessities in terms of issues of time but it also ensures the Minister is regulating the process as needed and not simply at speed. It provides an assurance that a quality approach is being taken. If the Minister of State cannot accept amendment No. 38, I urge him to consider amendment No. 39 which is a compromise that states the very wide powers to make regulations will at least only be used where necessary and not simply where it is convenient or suits the Minister. Of course, it is always convenient and expedient to bypass Oireachtas scrutiny. The more people one cuts out of the process, the faster one can go but expedient should not be the motivation here. Necessity should be the bar that is applied to the Minister making exceptional regulations under this section.