Seanad debates

Thursday, 12 December 2002

National Tourism Development Authority Bill, 2002: Report Stage (Resumed) and Final Stage.

 

Debate resumed on amendment No. 14:

In page 17, between lines 29 and 30, to insert the following:

"(3) No money may be paid by the Authority either directly or indirectly to any persons or organisations in breach of the Equal Status Act, 2000.".

–(Senator Henry).

John Dardis (Progressive Democrats)
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I made the point the last day that what Senator Henry had to say about golf clubs was correct. Golf clubs are one of the last bastions of chauvinism. While I agree with the Senator's sentiments, whether this is the way to deal with the problem is another question. I await with interest the reply of the Minister for Arts, Sport and Tourism, Deputy O'Donoghue.

Significantly, The New York Times had an article in its sports pages around the Saturday before last about this issue in Portmarnock Golf Club. It was the only article about anything outside the United States. I know it is a live issue in the United States itself because of controversy surrounding Augusta National golf club, where the US Masters is played. There has been considerable pressure to have that club opened up to women. Whatever about Portmarnock, Augusta has been an even greater bastion of prejudice. At one point it would not even have contemplated allowing black people through the gates, let alone women. Whether they equate the two is another matter. Tiger Woods changed a lot of that, thankfully.

The amendment deals with those who are in breach of the Equal Status Act, 2000. Whether a club is in breach of the Act would have to be tested objectively and I would be interested to hear the Minister's view. It is not good enough simply for us to decide that a club or organisation is in breach. It would be wrong to deal only with one particular incident. I recognise the importance of the Irish Open golf tournament for tourism and as a vehicle for promoting the country. I was at the Breeders' Cup international race meeting in November, and I know the Minister got an opportunity there to talk on national television in the US about the benefits of the Irish racing industry and the excellent horses we had on display on the day. That went down very well in that particular area and, I am sure, nationally. I do not underestimate the capacity of these events to generate goodwill and tourism revenue.

Nevertheless the central point still stands that discriminatory practices must be eliminated. If the Irish Open wanted an alternative venue it could come to Rathsallagh on the Kildare-Wicklow border, where I am happy to say my wife is the member and I am the associate.

Photo of Mary O'RourkeMary O'Rourke (Fianna Fail)
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The Senator should not be happy with that either.

Photo of Michael McCarthyMichael McCarthy (Labour)
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That is not equality either.

John Dardis (Progressive Democrats)
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I must respond to that intervention. There is a very significant financial benefit in being an associate member. You get many of the rights without having to pay the extra cost. I ask the Minister to look very carefully at how the spirit of this amendment could be accommodated.

An Leas-Chathaoirleach:

I remind Senators that they may speak only once to amendments on Report Stage, except the proposer of the amendment who may reply.

Photo of Martin ManserghMartin Mansergh (Fianna Fail)
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I welcome the Minister to the House. I am sorry in many ways that we have to discuss this amendment at all. In the Minister's previous office the Equal Status Bill was landmark legislation for which he will be honourably remembered. Many golf clubs throughout the country have acted in conformity with its provisions. When the Taoiseach opened a new clubhouse in Tipperary, for example, the club was in the process of changing its rules to accommodate the new situation.

We are apt to forget the role women played in the development of golf in Ireland. Some golf clubs were founded by women. My attention was drawn to this because a relative of mine was a secretary of the Warrenpoint Golf Club. The Golfing Union of Ireland is an all-Ireland body. In some ways the golfing union was far more liberal in the first part of the 20th century than in the latter part. Golf clubs had women members and club officers and the relative to whom I refer stated in 1922 that he hoped a lady might be captain "for nowadays, young ladies are masters of hounds and why should they not also be Captains of Golf Clubs". Alas, however, in 1947, Warrenpoint, Malahide and Enniscrone were told that under rule XVI: "No Irish Golf Club, the Constitution of which, either expressly or by implication, confers on women the right to attend or vote at any annual or special general meeting of such Club shall be deemed to have a constitution approved by the Union", and were obliged to take immediate steps to exclude women. The ladies present at the club meeting "voiced their protest to this in very strong terms. In the past they had been very energetic Club supporters in all the social and sporting activities, fund-raising, arranging dances and providing teas". There is an air of "back to the future" about this.

An Leas-Chathaoirleach:

When the Senator quotes from a book, he must give the reference.

Photo of Martin ManserghMartin Mansergh (Fianna Fail)
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The book is Warrenpoint Golf Club, A History 1893-1993 by Tom McAteer.

Golf is a fine sport and Ireland is an ideal country for it. It has become a major part of our tourism industry. It is most regrettable that the Golfing Union of Ireland has been so backward in terms of gender equality and that there are still one or two clubs, unfortunately the most prestigious clubs, exercising what can only be described as gender apartheid. There was no justification at any stage for this type of rule, but given the social changes that have occurred – after all, there are nearly as many professional women as there are professional men – any purported rationale for the type of thinking that allowed people to become associate members only and to play only during off-peak times is long gone.

It is wrong that semi-State bodies, even if Bord Fáilte is about to go out of existence, should condone lack of compliance with the law. State contracts only go to companies that are tax compliant and, as a general principle, State support should only go to clubs that comply with the equal status legislation. Members of the Seanad were the first to raise this matter and the media highlighted it, but no spokesperson on behalf of Portmarnock Golf Club has come forward to provide a justification for the policy. I do not understand how it can be consistent with the self-respect of successful, not to mention wealthy, people that they should operate according to an ethos which is so out of kilter with modern Ireland.

I am not saying this amendment is the solution to the problem, but we should thank Senator Henry for tabling it. I hope the Minister will bring any and all influence to bear – it might not be a legislative matter – so the club will take steps to bring itself into line with the rest of the country and the 21st century.

Photo of Mary O'RourkeMary O'Rourke (Fianna Fail)
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Lest anybody should think I am a rampaging golfer, I do not play golf and never have done. However, I have always been committed to equality, whether in my work life, political life or social life. Women have the same, and sometimes better, mentality, agility, mental prowess, sporting skills and other qualities as men.

This matter was raised first in the Seanad and among all Members there was equal disbelief that a golf club with such a glorious title and operation as the Portmarnock Golf Club should see fit to treat women differently from male members. I have received letters containing both praise and blame in respect of this matter. One is also told, from a high level, that some women members do not wish to pay the appropriate fee and are happy to be seen as damsels in distress if they can pay the lesser one. However, that is not the issue. That excuse is always put forward by the male species as a means of cloaking the issue. This is a macro principle, not the micro principle of who wants or does not want to pay the fee. It is a principle of equality.

Tiger Woods's arrival on the world stage of golf has transformed the race issue, but if a club was to exclude black people from membership we would be out protesting on platforms with our banners and flags and attaching ourselves to the fashionable cause of objecting to apartheid on the basis of colour. However, there is another type of apartheid whereby women are accorded, particularly under the rules of this golf club, inferior status.

I thank Senator Henry for tabling this amendment. I do not know if it is legally or correctly worded, whether it can be altered in the Seanad or how the Minister will respond to it. However, I am well aware that chauvinism is alive and well in many areas of Irish society. It is evident in political circles in general and in business circles. There is a belief that women might somehow have lost the run of themselves. They have brains, ideas and points of view. They are present, in very small numbers, in both Houses of the Oireachtas and the attitude is, "Well, is that not appropriate?"

I was a teacher in the 1970s when Paddy Hillery was our EEC Commissioner. I taught in one room and a lovely man from Connemara, Pádraig Joyce, taught in the room beside me in Summerhill. We taught the same pupils. He was paid one third more than I was, even though we taught the same pupils – young women up to 18 years of age – the same curriculum with, hopefully, the same outcome. It is 25 years since that was changed. There are still many areas where equal pay is not the norm and women do not receive the same salaries for the same work. Teaching and public services were among the first sectors to be tackled when the European Union insisted on equal pay – we would probably still be waiting for our own Governments to do something. There were howls that nobody could afford this.

There was also a landmark decision last year regarding women taking maternity leave – to which they were entitled – who then suffered a lack of promotional opportunities when they came back. They were deemed uncertain employees when of childbearing age because they were going off to have babies. My points may be making people uncomfortable, but they are facts of life; the facts of life are not just what one tells one's children at 11 or 12 years. They also relate to sections of society which still regard women as inferior or as not having all their faculties, which I rebut strongly and will continue to do in public and private life. There will be ribald and risqué jokes with people saying women are at it again, but I am pleased there are men as well as women here who share the views expressed today.

I knew the Minister when we were both in Cabinet and we were and remain friends. However, I urge him to look at the implications of Senator Henry's amendment which she tabled in good faith, believing women should not be excluded from any area of life. Women should be able to say: "I am here and I want to be the same as you" if that "you" is a man.

Photo of John Paul PhelanJohn Paul Phelan (Fine Gael)
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I welcome the Minister and support the amendment. Much of what I wish to say has been said already. Like the Minister and other speakers, I do not play and have never played golf. I am not a member of any golf club as I do not particularly enjoy the game. However, that is neither here nor there as regardless of whether a golf club, rugby club or any other sort of club is involved, the situation in Portmarnock Golf Club should not be allowed to continue. I praise Senator Henry for this amendment. When the Irish Open Golf Championship was awarded to Portmarnock, the issue dominating headlines here and abroad was the fact that there was discrimination against women in the golf club. This cannot be allowed to continue. I understand the Taoiseach and all previous incumbents are honorary members of Portmarnock Golf Club. It is just as well none of them is a woman.

Photo of Michael McCarthyMichael McCarthy (Labour)
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I support the amendment and reiterate the points made by Senator O'Rourke. The fact that there is a lower fee for associate membership is not the issue. If money was the issue, Senator O'Rourke would not have taught in the school in Summerhill for one third less pay than her male counterpart, which was ridiculous. The marriage bar, which was only abolished in 1975, affected people like my mother. It was a disgrace to any society to allow such a bar, which is now absolutely unthinkable. Even though there was a marriage bar in 1974, there have been recent arguments about a glass ceiling which show there has been a seismic shift in the country. This is due to the former Minister for Equality and Law Reform and successive Ministers in that Department.

It is wonderful that the Seanad has given a lead with progressive equality legislation. I ask the Minister to consider the merits of Senator Henry's amendment. We must put down a marker. The Minister was responsible for the Equal Status Act, a wonderful Act, when Minister for Justice, Equality and Law Reform and should accept the amendment, if possible.

Photo of Mary WhiteMary White (Fianna Fail)
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I welcome the Minister. The Leader of the Seanad is a woman and an example of what a leader should be. We are privileged to have the benefit of her experience.

Photo of Mary O'RourkeMary O'Rourke (Fianna Fail)
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We will probably have jokes about that.

Photo of Mary WhiteMary White (Fianna Fail)
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I am praising the Leader. It is clear to me from every session that both sides of the House are delighted to have a Member of the calibre of Senator O'Rourke to lead the House. She does her job vigorously and makes the Seanad dynamic and exciting. I get bored if matters are not moving fast, but she sets the pace and makes them exciting.

I compliment Senator Henry on tabling this amendment. The last time I met the Minister I asked him quietly to implement the 60:40 ratio for the new tourism board. That ratio is critical and part of the programme for Government. I feel strongly about this as there are as many good women out there as men for appointment to State boards. While I have been a member of boards, I also had to retire from the Office of Public Works in 1969 when I got married. I agree totally with Senator O'Rourke that only for the European Union we would still be waiting for something to happen.

As I said this morning at the Joint Committee on Finance and the Public Service, I find it frightening that the Dáil and Seanad do not reflect the fact that women make up half of our society. I am not used to male dominated environments and since being born have never found any opposition to me as a woman. Growing up I always believed women were better until I heard other opinions in my late twenties. We need leadership from the top and calls for more women to come forward. There is quite an aggressive and combative environment in the corridors, if not here in the Chamber.

(Interruptions.)

Photo of Mary WhiteMary White (Fianna Fail)
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What did the Senator say?

John Dardis (Progressive Democrats)
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Nothing. It was just an aside.

An Leas-Chathaoirleach:

Senator White is inviting interruption.

Photo of Mary WhiteMary White (Fianna Fail)
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Women occupy a particular role in business. Generally speaking, they do not have the macho style which is the traditional approach to running a business. They bring their own instinctive qualities to bear, qualities which are different from men's. In my business we were acutely conscious of having a feminine and maternal relationship with our employees. We did not get on with everyone all the time, but there was a basic difference between men's and women's approaches.

There are 111 Fianna Fáil Deputies and Senators but only 11 women. This saddens me. There must be leadership and women must be encouraged to participate. I support Senator Henry. The Minister should do whatever he can do to change this legislation. I ask him again to implement the 60:40 ratio for the new tourism board.

Photo of John O'DonoghueJohn O'Donoghue (Minister, Department of Arts, Sport and Tourism; Kerry South, Fianna Fail)
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I thank Senators for their contributions. I agree with most of what has been said. It is true that there should not be discrimination against women in any form. It is also true that there should not be discrimination against women in the rules of any club. I fully concur with that.

I know a good deal more about this than people might realise. My late mother, having become a member of Kerry County Council after my father's death in 1964, was involved in politics at a time when such involvement was not fashionable. Together with the wonderful former Senator and Deputy for Kerry North, Kit Ahern, she was one of only two women ever to serve as chairperson of Kerry County Council. She was also the first woman president of a chamber of commerce. I understand the position and I fully appreciate what has been said.

When we introduced the Employment Equality Act and the Equal Status Act, the linchpin of both was that there would not be discrimination on grounds of gender. That was made perfectly clear and, happily, that is the case today. It has led to a position where only two golf clubs, which is regrettable, exclude women from being members. As Senator O'Rourke so eloquently said, it is not a micro issue but a macro issue. I fully subscribe to that view.

The Equal Status Act and the Employment Equality Act were both referred to the Supreme Court for examination. It was the intention that the sanction for a breach of the Equal Status Act would be more severe than it is. A breach of the Equal Status Act results in the licence of the club concerned being forfeited and the loss of its certificate of registration. It was the intention to ensure that the sanction would be more severe than that. However, this would not be constitutionally permissible on the advice which was available. That immediately creates a difficulty.

It is true that, under the Equal Status Act, there is provision for an exemption from the terms of the legislation in so far as they apply to discriminating on gender or any other grounds. One of those exemptions relates to a club which is for the use of one gender. It is not a matter for me nor for anybody here to interpret the legislation; that is a matter for the courts. I could not say at this point what way such a case would go. Prima facie, there is no doubt in my mind that to exclude people from a club on the grounds of gender alone seems discriminatory. The question as to whether a court would hold that the exemption applies would be a matter for the court.

The spirit of what Senator Henry has put forward must be acknowledged as being sound, sensible and proper. She acknowledged that the terminology she proposed, while well drafted, might not be a panacea. The difficulty is how to proceed from here. I asked the representatives of the members of Portmarnock Golf Club to call to see me and I had a discussion with them. I outlined to them the views expressed in this House and I also explained to them that I anticipated that a number of other high profile politicians would speak out against their practices. They understood this. I also outlined to the representatives my personal views and preferences. I made it plain to them that it would be my preference that they would lift the rule on not allowing women to be members of the club. I happily reiterate that sentiment.

If we proceed with Senator Henry's amendment – she has acknowledged the difficulty in this – we would insert into legislation dealing with a national tourism authority a provision dealing with equality. Aside from the appropriateness of doing that, there is a difficulty in terms of the practicalities. If the measure was inserted into the legislation, it would mean that every time the National Tourism Development Authority was going to making a grant available, it would have to conduct inquiries as to whether the body to which or person or persons to whom it was making the grant available was guilty of discrimination. It would be virtually impossible to do so. It would be a different matter if the body, person or persons had been held to be behaving in a discriminatory manner, but everybody will immediately recognise the major problem of the National Tourism Development Authority deciding in advance of any court case whether discrimination was being practised. The National Tourism Development Authority is not a court and could not be empowered to make a decision of that sort.

The next issue which arises, in the context of Senator Henry's amendment, is whether, if discrimination had occurred and had not been corrected, it would be possible to provide that the National Tourism Authority could not make a grant available. On the face of it, that seems to be possible, but a further difficulty arises in that the appropriateness of a sanction such as that has not been held to be in accord with the Constitution.

During the passage of the Equal Status Act through the Dáil I remember the major difficulties that arose in relation to the sanctions and their subsequent formulation. The reason we proceeded with the sanction of forfeiting the licence was that many clubs would not be financially viable if they were to lose the licence attached to their premises. Unfortunately and even though they are a minority, there are also clubs which could survive without licences.

I support the sentiments behind what had been said. The difficulty which remains is that of formulating a methodology whereby the sentiment can be expressed in legal terminology and be effective and practical. I will give further consideration to the matter. I cannot, for the reasons outlined, recommend that Senator Henry's amendment be passed, but I hasten to add that what she and Senators O'Rourke, Mansergh, Dardis, White, John Paul Phelan, McCarthy and others said in relation to this matter is perfectly sound.

To be fair, it was never the intention of Bord Fáilte to fund clubs guilty of discrimination. The intention is to fund a major event, the Irish Open, in the sporting calendar. Golf earns €140 million for the economy, 406 golf courses are affiliated to the Golfing Union of Ireland, 220,000 visitors are attracted to the country to play golf and we have a higher proportion of great golf links courses than any other country in the world. The Irish Open is broadcast to 90 countries and has a cumulative television audience of 200 million. Bord Fáilte's intention was to ensure that the Irish Open would continue.

It is also fair to say that we have been extremely fortunate in gaining a sponsor of the stature of Nissan Ireland for the Irish Open. I assure Senators that it was never the intention of that company to support anything other than the Irish Open. For that, I express my gratitude.

It would be churlish of me were I not to acknowledge the fact that Portmarnock Golf Club opened its gates to the Irish Open and has, oddly enough, hosted the national women's championship on a number of occasions.

I support the thrust of Senator Henry's amendment and I hope I have explained the position sufficiently. If I have not, it is because I cannot put it any better than I have.

An Leas-Chathaoirleach:

I remind Senators that this Bill must conclude by 12.30 p.m.

Mary Henry (Independent)
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I thank the Minister for his reply. I do not for one instant believe he approves of anything in the way of discrimination. Why in heaven's name would he have brought the Equal Status Act through the House and dealt with it with such care and consideration if he did not support it?

I thank Senators for their support for this amendment. It is sad to think that Senator O'Rourke, Senator White and I have been the objects of discrimination within our lifetimes. I refer here to the fact that women were dismissed when they married – perhaps people would have preferred couples to live as partners – and the fact that we did not receive equal pay for equal work. Matters were quite straightforward in terms of obtaining equal pay for, as in my case, doctors and teachers because they could be compared. However, I recall the difficulties we experienced in obtaining equal pay for hospital cleaners whose conditions had to be compared to those of porters. This type of discriminatory behaviour continues.

I do not think Bord Fáilte or Nissan realised what a mess they were getting into and the resultant publicity has not been good for either company. My concern is with the child of Bord Fáilte, the National Tourism Development Authority, rather than Portmarnock Golf Club, which has to fend for itself and do whatever it believes is right and just. It was more in the spirit of what Senator Mansergh said about the fact that Departments and semi-State bodies can only deal with firms that are tax compliant. We should try to insist that semi-State bodies should only deal with organisations and people who operate within the spirit of the law.

It should be remembered that women pay a large amount of tax. I welcomed the introduction of tax individualisation by the Minister for Finance, Deputy McCreevy, because I had been paying tax at the top rate for all my married life. Women pay a great deal of tax and will support this new authority financially. I would have liked to have thought that we could have included a clause stating that the authority would be obliged to take into account the Equal Status Act.

I accept the points the Minister made and his commitment to re-examine the position. The issue has had a good airing and I thank Senators and the Minister for what they said.

An Leas-Chathaoirleach:

Is the amendment being pressed?

Mary Henry (Independent)
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I would never dream of having Senators on the Government side vote against their conscience, which I imagine some of them might have to do. I withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Mary O'RourkeMary O'Rourke (Fianna Fail)
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The Leas-Chathaoirleach said, on foot of an order I made this morning, that the debate had to conclude by 12.30 p.m.. However, there was a slight delay in resuming the proceedings on the Bill. As it will only take a few more minutes to conclude the debate, can we agree to continue beyond 12.30 p.m.?

An Leas-Chathaoirleach:

Is that agreed? Agreed.

Photo of Feargal QuinnFeargal Quinn (Independent)
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I move amendment No. 15:

In page 18, line 17, after "Oireachtas", to insert "and shall at the same time cause the report to be published by electronic means".

I welcome the Minister back to the House for Report Stage. We have taken up quite an amount of his time. We tabled the amendment on Committee Stage and had a good debate on it then. For that reason, there is probably no need to go over it again.

I will repeat one aspect of the debate on which Senator Ryan spoke well when he said that, when the Gutenberg press first appeared in the 15th century, there were probably people at the time who said there was no need to have something printed because it might not last, catch on or be efficient. There is little doubt that the benefits of electronic means of communication are so strong, beneficial, transparent and useful, particularly in terms of speed and cost, that there is no way an organisation should not publish its reports and other details in electronic form. The vast majority of information we receive comes in electronic form and arrives long before we receive letters or phone calls.

I criticised Bord Fáilte for not printing its report, but the Minister corrected me. I was looking for it in the wrong place. I hope the board manages to help some of the amateurs seeking its report to find it in future. It is essential that the reports be published by electronic means.

I have tabled amendments similar to that before us for some years and they are gradually being accepted. However, there is a difference between compelling and enabling and I do not seek an enabling provision. I know organisations are allowed to publish a report by electronic means. I want to compel them to ensure that a person in another part of the country or the world does not have to buy the report, request its delivery in writing or look for it and that all he or she has to do is press a button and, in the comfort of his or her home in America or Australia, obtain the details. I urge the Minister to consider this again and hope he has had an opportunity to do so since Committee Stage.

Mary Henry (Independent)
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I second the amendment. It is important that we do this given that the report should be seen internationally. It is not just for local consumption.

Photo of Mary O'RourkeMary O'Rourke (Fianna Fail)
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I agree with the amendment. I introduced the Electronic Commerce Act in the Seanad, so the amendment makes sense in that context.

Photo of John O'DonoghueJohn O'Donoghue (Minister, Department of Arts, Sport and Tourism; Kerry South, Fianna Fail)
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My official notes do not favour the amendment.

Photo of Mary O'RourkeMary O'Rourke (Fianna Fail)
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However, the Minister will accept it.

Photo of John O'DonoghueJohn O'Donoghue (Minister, Department of Arts, Sport and Tourism; Kerry South, Fianna Fail)
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It makes sense and I am inclined to accept. I will request the officials to see if we can find a wording which will encompass the amendment. We will then table the new amendment for consideration in the Dáil. What the Senator says makes sense. It is already the case that the material is published. The Senator outlined that and there is no need for me to go into it. The amendment makes sense and we will try to word it in such a way that it can be incorporated in the Bill.

An Leas-Chathaoirleach:

Is the amendment being pressed?

Photo of Feargal QuinnFeargal Quinn (Independent)
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No. The Minister has not only listened in this instance but has acted as well and I appreciate that.

Amendment, by leave, withdrawn.

Photo of Feargal QuinnFeargal Quinn (Independent)
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I move amendment No. 16:

In page 19, to delete lines 42 to 45.

I know the Minister is in a good humour and is accepting all amendments tabled by me. I assume he will respond in the same way to this amendment. We had a good debate on this topic on Committee Stage, as we have had on a number of other occasions. In one such debate, Senator O'Toole in an impassioned plea – far more impassioned than I can be – managed to convince the Minister to accept it.

The existing wording is quite frightening. On Committee Stage I said the words reminded me of Stalinist Russia. The Bill states:

In the performance of his or her duties under this section, the chief executive shall not question or express an opinion on the merits of any policy of the Government or a Minister of the Government or on the merits of the objectives of such a policy.

I do not believe such words are used in any Bill now coming through the Oireachtas. The provision is so extreme it is tantamount to a dictatorship of the mind.

Photo of Mary O'RourkeMary O'Rourke (Fianna Fail)
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The thought police.

Photo of Feargal QuinnFeargal Quinn (Independent)
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On Committee Stage the Minister explained why it was introduced in the past, saying it was not right to have a civil servant criticise the policy of the Government. I can understand that. In the 1920s and 1930s when Bord na Móna, the ESB and other State-sponsored companies – this is a more correct term than semi-State companies – were being set up the Government decided to appoint independent boards. There were very strict rules and regulations governing what they could do. This was to give them the flexibility to pick their own management teams, take risks and chances, and go into the commercial world. This is particularly necessary in the case of a tourism authority, which has to compete with every other country in the world to convince people that ours is a more attractive place to visit.

We now put a provision in the Bill saying the chief executive, when questioned on certain areas, must not comment or express an opinion on the merits of any policy of the Government or a Minister of the Government or on the merits of the objectives of such a policy. That is so extreme that if we wished to make sure that no Minister or Government policy were ever criticised, we would be much wiser not to have an independent authority and rather leave it in the hands of the civil servants. Civil servants are there to put into operation the views of the Minister. I urge the Minister to reconsider this.

Mary Henry (Independent)
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I second the amendment. The section is very politically correct in referring to "the chief executive officer in the performance of his or her duties", which I am very glad to see. However, we will not get value for money from a chief executive officer whose hands are so tied that when speaking before the Committee on Public Accounts, he or she is not even in a position to expound on the merits of the policy the Minister is bringing forward.

Photo of David NorrisDavid Norris (Independent)
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I support my colleagues in this important matter, which relates to the freedom of speech and efficiency of the person involved. In case the Minister is worried about creating a precedent, let me assure him that he is not. When this same section appeared in the Competition Bill, I objected to it and the Minister took it out. The Minister will not do any great damage or create a precedent by taking it out of this Bill. I am amazed it has surfaced again after we removed it from the Competition Bill. There is some little gnome in an office somewhere putting these things back in all the time. Could the Minister refer him for re-employment in Santa Claus's cave?

Photo of Michael McCarthyMichael McCarthy (Labour)
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I support the spirit of this amendment. Some minutes ago we debated the merits of equality. One of the fundamentals of social justice and equality is freedom of expression, particularly in this context. What would happen if a civil servant had an opinion that was more pertinent, effective and constructive than that of the Minister and there was no modus operandi on the part of the civil servant to disagree? Senator Mansergh will probably have a more specialist and professional opinion in this regard, if this House allows him to express it.

It is akin to a dictatorship of the mind, when we are in effect muzzling somebody to prevent the expression of an opinion. Having just debated at length the issue of equality, with very worthy contributions from all Members, we should not then reject an amendment which protects somebody's right to express an opinion.

Photo of Martin ManserghMartin Mansergh (Fianna Fail)
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There is a balance to be struck here. I am not sure I really agree with either extreme. A board chairman appointed by a previous Government could start to adopt a very political role in opposing the Government policy, which would be undesirable. However, there should be reasonable freedom as shown, for example, by the chairman of the IDA during the debate on the Nice Treaty. He clearly had something important to contribute and it was right he did so. It is a reasonable requirement that the chairman of a State body should not act in an overtly or even covertly political way.

It is legitimate to bring important considerations to Government, even if they are not necessarily fully defined by Government policy. My concern is with the way it is drafted. It is a throwback to a more authoritarian culture, which, I am glad to say, has largely gone from the public service in recent years.

The Taoiseach permitted me, as a special adviser, to make considered contributions to public debate. They were not at variance with Government policy, but some of them might have strayed into areas where Government policy had not yet been defined.

Without necessarily agreeing with the amendment, the Minister should look at the rather draconian wording. The way the Bill is worded uses a sledgehammer to batter a nut. However, I am not saying it is covering something on which there could never be any possible concerns. Although I do not want to define the particular area, I have experience of an individual in charge of a public authority who uses it systematically in a very political and confrontational way. That is quite wrong and the Minister has a valid point in that regard.

Photo of John O'DonoghueJohn O'Donoghue (Minister, Department of Arts, Sport and Tourism; Kerry South, Fianna Fail)
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To a large extent this amendment relates to the separation of powers. While the analogy might not be entirely appropriate, I recall a story. On one famous occasion when President Jefferson did not like a judgment of the great chief justice, John Marshall, when explaining the enforcing role of the president as against the judgment of the court, he said memorably: "John Marshall has given his judgment; let him now enforce it if he can."

In this instance we are not speaking about the gagging of the chief executive. This provision is to ensure he or she does as he or she is supposed to do, which is to implement the policy that has been laid down. It is not the function of the chief executive to make policy. He or she is an instrument or a means of ensuring the policy is implemented. If we were to empower the chief executive to offer his or her opinion on a policy which had been set down, we would end up in an incongruous position, whereby he or she might implement a policy with which he or she had fundamentally disagreed and everybody would know. This would not be acceptable.

Several other laws contain precisely the same provision as the Bill and there is, I understand, no suggestion that these should be changed. For example, legislation enacted as recently as 1997, the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act, states:

15.–(1)A civil servant or a member of the Permanent Defence Force or the Garda Síochána shall not—

(a) while giving evidence to a committee, question or express an opinion on the merits of any policy of the Government or a Minister of the Government or the Attorney General or on the merits of the objectives of such a policy..

There are numerous other examples, including the Employment Equality Act, which we discussed earlier, the Food Safety Authority of Ireland Act and the Vocational Education (Amendment) Act. For these reasons, I do not propose to accept the amendment.

Photo of Feargal QuinnFeargal Quinn (Independent)
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I listened very carefully to the Minister and while I understand his concerns, he did not address the kernel of the problem. He took as an example the civil servant, garda or member of the Defence Forces. This is precisely my point. Members of these groups should not criticise the Government, nor question the merits of policy, as they are servants of the Government, in contrast to members of an independent body.

The Bill establishes an authority and gives it independence in implementing policy. Senator Mansergh pointed out that the chairman of the authority could have been appointed by a previous Administration. However, according to the legislation, the chairman has every right to question the merits of policy; it is the chief executive who may not do so.

I do not accept the Minister's point. If an executive of a company of which I was chairman decided to criticise company policy, I would insist he be sacked. If the chief executive of the State company of which I was chairman had questioned the instructions he received from the board or criticised the Government, we would have sacked him and if the Government had not accepted his sacking, the board, like any logical board, would have resigned. Many steps can be taken in such circumstances.

The provision sets a dangerous precedent. The Minister quoted several other cases, including the Food Safety Authority of Ireland Act. As the provision appears innocuous and features on page 29 of the Bill, it is possible that similar provisions could have slipped through on other occasions. However, on discovering this clause in the Competition Bill, Senators Norris and O'Toole succeeded in having it withdrawn. Senator O'Toole recorded a similar success during the debate on another Bill.

While the provision should and does apply to civil servants, it should not apply to independent boards. We establish these new authorities so that they can act independently and according to what they perceive to be best. However, they do so within the constraints established by the Houses.

Judging by the remarks made by Senator Mansergh, it is likely the Minister will consider changing the wording of this provision in future to improve the legislation. I am disappointed he will not accept the amendment and hope he will reconsider his position. On the basis that he has been generous in accepting other amendments, I will withdraw the amendment and not press a vote.

Amendment, by leave, withdrawn.

Government amendment No. 17:

In page 24, line 49, to delete "associations" and substitute "association".

Photo of John O'DonoghueJohn O'Donoghue (Minister, Department of Arts, Sport and Tourism; Kerry South, Fianna Fail)
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I am under instructions from the Leader of the House not to discuss this amendment at length. The purpose of this drafting amendment is to amend the incorrect use of the plural.

Amendment agreed to.

Bill, as amended, received for final consideration.

Question proposed: "That the Bill do now pass."

Photo of Mary O'RourkeMary O'Rourke (Fianna Fail)
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I thank the Minister for coming to the House on several occasions to debate the Bill. Although some Senators fundamentally disagree with him, having heard him speak we appreciate he has given much thought to the matters raised in the House. While I do not agree with him, I am grateful for his time and his measured reflections. I expect he will ponder the amendment tabled by Senator Henry and ensure it is reflected in the Bill when it comes before the Dáil.

Photo of John Paul PhelanJohn Paul Phelan (Fine Gael)
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I thank the Minister. He has been present in the House more often than any other senior Minister. I am grateful to him for taking on board many of the observations made in the House.

Mary Henry (Independent)
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I thank the Minister for the time and thought he invested in the amendment I tabled and for his promise to try to reflect its spirit in the legislation. I hope he will consider the point made by Senator White regarding the composition of the board and ensure each gender has at least 40% representation.

Photo of Michael McCarthyMichael McCarthy (Labour)
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I concur with previous speakers in expressing gratitude to the Minister for coming to the House on this and many other occasions recently. I appreciate the spirit and manner in which he analysed and reflected on amendments and his willingness to accept some of them.

Photo of David NorrisDavid Norris (Independent)
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I thank the Minister. While I was not here for much of the debate, I followed it on the monitor. I understand the Bill will now proceed to the Dáil. I ask the Minister to reconsider one or two points, particularly with regard to the representation of women. I received a document from the Irish Women's Council today which featured photographs showing the small number of women on various boards.

Photo of Mary O'RourkeMary O'Rourke (Fianna Fail)
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That is a different point.

Photo of David NorrisDavid Norris (Independent)
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I was very interested in the Minister's argument that a chief executive who spoke out against policy would be implementing policy with which he disagreed. The danger is that the Government will not be aware that a chief executive is implementing policy with which he does not agree. This is a corrosive and corrupting feature of the public service.

I hope the spirit of generosity the Minister has shown during the passage of the Bill will prevail and he will accept the amendments tabled by some of my colleagues. It is better to know somebody is disagreeing with one's policy because he or she could implement it in a half-hearted manner or resort to "Yes, Minister" type tactics. I would much prefer to know if my chief executive had problems. One listens if they are reasonable and fires them, as Senator Feargal Quinn said, if they are not.

Photo of Feargal QuinnFeargal Quinn (Independent)
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I appreciate the Minister's frequent presence in the House and the attention he showed. I thank his officials for introducing a Bill which will be of immense importance. Although the tourism industry has a future, it faces many challenges. Fortunately, this Bill, which has benefited from our amendments and the attention of the Minister, will help it.

Photo of John O'DonoghueJohn O'Donoghue (Minister, Department of Arts, Sport and Tourism; Kerry South, Fianna Fail)
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I thank Senators and the Chair for their contributions. It is always a pleasure to come to the House. We have had a constructive debate and the contributions of Senators have led to an improved Bill, which is the reason we are all here.

Question put and agreed to.