Alice-Mary Higgins (Independent) | Oireachtas source

Amendment No. 15 is really about section 11, which I previously opposed as an entire section. Again, it is an attempt to reflect the debate and discussion we had around the very concern that, effectively, there is a requirement that still feels so extraordinary. As I said, section 11, which I opposed, is one area in which the Minister has extraordinary powers in terms of giving directions to the agency. Section 11(1) provides for the Minister giving direction on "any matter or any thing referred in this Act or any other enactment, and ... the implementation of any policy or objective of the Minister or the Government". This is extraordinary power, under section 11, for the Minister to effectively give direction the agency on anything, and that direction should be complied with in a period of time set out by the Minister.

Layered on top of that then is section 15 on the board and what it does. There is an obligation that the board would make sure there are procedures in place to ensure "compliance with the policies (whether contained in guidelines, codes or other documents, or any combination of them) of the Government or a Minister of the Government [that is, any Minister of the Government] to the extent that those policies may affect or relate to the functions of the Agency". Again, this is another huge overreach whereby the agency is to be almost standing ready to comply with any policy of any Government Minister. That is fine if it is clear what mandate and power that Government Minister has in bringing forward that policy. However, the Oireachtas is the only body that can legislate and we do not have a practice here, and nor should we, of giving blank cheques to Government Ministers to say they can go ahead and impose any policy on what is supposed to be an independent agency without any clear process which that policy has to move through. It could be the policy of an individual Minister and the text refers to “the Government or a Minister of the Government”. To be clear, when there is a policy and it is put into action, that has real-world effects and, therefore, the Government can have this real-world impact through its policies without any reference back to legislation.

That is fine and the agency can be asked to be ready to comply with the policy where that policy is, first, either underpinned by legislation or statutory instrument or, alternatively, at least outlined in guidelines or codes. Right now, the Bill refers to “any document”. A Minister can literally produce a memo that says, “Here is your new policy. Please implement it right away”, without needing to have a mandate from the Oireachtas, without guidelines having been published that people can see and without even a code. For example, there are cases where safety codes or regulations may be made under statutory instrument where it is appropriate that the agency would implement them. However, in all of those, we can trace back where the authority and mandate come from, and there is a level of oversight of any code, guidelines or regulations under statutory instrument, or, indeed, primary legislation. There is traceability, rather than simply saying that for any document that lands on your desk from any Minister - it could be the Minister for Defence or the Minister for Enterprise, Trade and Employment - you have to be standing ready to comply with that new policy.

It also brings a real risk of contradictory policies coming through from different Ministers of Government. Again, this is part of the messy architecture of overreach that I hope we will not regret in the future. I addressed section 11 previously so I am just focusing here on this one issue with section 15.