Seanad debates

Wednesday, 24 October 2012

12:05 pm

Photo of Michael MullinsMichael Mullins (Fine Gael)
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I welcome the Minister of State, Deputy Perry, to the House.

Photo of Lorraine HigginsLorraine Higgins (Labour)
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I, too, welcome the Minister of State to the House to discuss this issue regarding Garda vetting. It is a central pillar of the Government's objective to have large numbers of those who are currently out of work gain meaningful employment as a means of rectifying our current economic crisis. I commend the efforts made by the Government in this regard, including the increase in foreign direct investment to our shores, the introduction of an action plan for jobs, a schools building programme and significant capital spending on infrastructure, as outlined in the July stimulus plan. However, as an Oireachtas Member for east Galway, I must focus on how Government and associated agencies can remove barriers to work for those in my constituency. I want to ensure that all my constituents have accessibility to the workforce and that boundaries and barriers to work are eliminated by the Government. For us to achieve anything of significance in this regard, we need to address the delay in processing of applications for Garda vetting.

I acknowledge and understand that the Garda Síochána are providing a great service in terms of ensuring a process of quality control and that it is of the utmost importance that nothing comes between those who want to work and employment. The fact that people are having to wait months for Garda clearance is acting as a barrier to entry into the workforce. In my home town of Athenry, some 63 students who are studying child care, health care, nursing and social studies in Athenry vocational school, who expected to undertake work experience a number of weeks ago as part of their course, have been unable to do so in circumstances where they have yet to receive Garda clearance. This means they are being significantly delayed in completing their courses and entering the marketplace for work.

Following on from my raising this issue in the Seanad yesterday, I was contacted by a self-employed man who told me he had to cease work for three weeks as he did not have the requisite Garda vetting for his business. It is fair to say he probably endured some degree of financial hardship as a consequence. This is a terrible indictment of our processes in Ireland and serves only to deter and discourage people from entering the workforce. We must be mindful that students and self-employed people are the people we expect to assist us in rebuilding Ireland. They are the ones who have not emigrated and want to work in or develop their businesses in Athenry, a town where currently 30 business units remain empty. I am sure this situation is being replicated throughout the country. Steps need to be taken to ensure that these delays are abated, if not eliminated.

Photo of John PerryJohn Perry (Sligo-North Leitrim, Fine Gael)
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I thank the Senator for raising this important issue, which I am taking on behalf of the Minister for Justice, Equality and Defence, Deputy Shatter.

The Minister is aware that apparent delays in the processing of vetting applications causes anxiety for those awaiting vetting certificates so that they can take up employment positions or voluntary roles. Both the Garda central vetting unit in Thurles and the Minister are acutely aware of the need to minimise the turn-around time for vetting applications. At a time when people are keen to get back into the workforce we must ensure that the vetting process does not interfere with this.

For the sake of clarity and to put the matter in context, I would like to outline the purpose of the vetting process. The Garda central vetting unit provides employment vetting for approximately 20,000 organisations in Ireland which are registered with the Garda for this purpose. These are organisations which employ persons working in a full-time, part-time, voluntary or training capacity with children and-or vulnerable adults. The primary purpose of the process is the protection of children and vulnerable adults. This is the paramount consideration. The number of vetting applications received up to September 2012 is 212,558, with an expected outturn for the year of 350,000. The number of applications dealt with during the past few years have increased, from 218,404 in 2008 to 315,100 in 2011. Garda vetting disclosures are made to registered organisations following the signed authorisation by a vetting subject permitting the Garda central vetting unit to disclose to the registered organisation details of all prosecutions, successful or not, pending or completed and-or convictions which may be recorded in respect of him or her in the State or elsewhere. Alternatively, the disclosure will state that there are no prosecutions or convictions recorded in respect of the person.

The function of the Garda central vetting unit is to make disclosure, in accordance with a written authorisation from the vetting subject, to the registered organisation. Decisions on the suitability of the person concerned rests at all times with the recruiting organisation to which a vetting disclosure is made. As I mentioned earlier, the vetting unit currently processes over 300,000 vetting applications per annum. The staff of the vetting unit are to be commended for their work in reducing the processing time for vetting applications, from some 12 to 14 weeks at the time the Minister was appointed in March 2011 to between two and three weeks by May 2012. This improvement was of enormous benefit to individuals and organisations throughout the State. However, the number of staff in the unit decreased by 20 between March and May this year as temporary staff contracts came to an end. This reduction in staff numbers has been partly offset by the redeployment of 15 clerical officers from the Department of Agriculture, Food and the Marine to a sub-office of the vetting unit in Ennis in May. The new staff have, at this stage, completed their training period. In the interim, however, processing times again increased and the current processing time vetting applications is eight weeks. Seasonal fluctuations such as the start of the school year and the necessity to seek additional information on particular applications can result in this processing time being exceeded on occasion.

The Garda central vetting unit, which will become the National Vetting Bureau and will have a substantially expanded role under new legislation, and the Minister are engaged in discussions with the Department of Public Expenditure and Reform to ensure adequate staffing to meet these new demands.

Photo of Lorraine HigginsLorraine Higgins (Labour)
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I thank the Minister of State for his succinct response on this matter. The system needs to be reformed as it is clear that there is a huge amount of duplication. A person wishing to work in the area of social services must satisfy Garda vetting requirements in this regard. Where such person also wishes to train a Gaelic or soccer team, he or she is required to make a further application for Garda vetting. It should be possible to streamline the process and to ensure a turnaround of one or two weeks, at most. I ask that the Minister consider this in light of my raising this issue here this evening.

Photo of John PerryJohn Perry (Sligo-North Leitrim, Fine Gael)
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I again thank the Senator for her interest in this matter. The processing of applications takes a certain amount of time, with processing of some applications taking longer than others. Every effort is made to limit, if not eliminate, the impact on individuals and registered organisations wishing to take on new employees or volunteers.

All organisations registered for Garda vetting are aware of the processing timeframes. The Minister, Deputy Shatter, appreciates very much the matter has been raised this evening. We will have new legislation and new staff. It is about getting people back to work and having proper procedures in place. The Minister is very aware of the issue. The outturn this year of 350,000 is a huge achievement by the staff who carry out the very detailed work involved in the vetting of individuals.

The Seanad adjourned at 8.10 p.m. until 10.30 a.m. on Thursday, 25 October 2012.

12:15 pm

Photo of Marc MacSharryMarc MacSharry (Fianna Fail)
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I move amendment No. 3:


In page 6, between lines 39 and 40, to insert the following:?(5) The post of Director for Mental Health shall be a publicly advertised position, subject to strict criteria.?.
This is a similar thread to the amendment on Committee Stage, which the Minister recalls. The essence of the Bill, which is supported by all Members, is that the Minister will have more hands-on control and the Government will have a more direct input into its workings. The new section 16E(2) as inserted by section 7 of the Bill states: "Subject to subsection (4), a person appointed as Director General shall be recruited in accordance with the Public Service Management (Recruitment and Appointments) Act 2004." We propose to delete the lines "subject to subsection (4)".

12:20 pm

Photo of David NorrisDavid Norris (Independent)
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No. That relates to amendment No. 4. The Senator is speaking to amendment No. 3.

Photo of John GilroyJohn Gilroy (Labour)
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On a point of order, Senator MacSharry spoke to amendment No. 4. We are dealing with amendment No. 3.

Photo of Terry LeydenTerry Leyden (Fianna Fail)
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We are dealing with amendment No. 3. I thank Senator Gilroy for his intervention.

Photo of Marc MacSharryMarc MacSharry (Fianna Fail)
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I got slightly confused. It is not the first time it happened and it will not be the last. We propose to insert the words "The post of Director for Mental Health shall be a publicly advertised position, subject to strict criteria." The Mental Health Reform Group is concerned that the Bill limits the recruitment of a new director to the HSE to those who already hold the position of national director, a point on which we touched earlier. It is vital that we get the person with the appropriate expertise for the job. That is not to say that somebody within the current set-up might not have that expertise and sail through a recruitment process, but in the public interest and having regard to the credibility of what the Minister is trying to do, which we are all behind, we believe the position must be publicly advertised, subject to strict criteria. I apologise for discussing the other amendment earlier.

Photo of Thomas ByrneThomas Byrne (Fianna Fail)
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I second the amendment. It is a very important issue and it should be supported.

Photo of David NorrisDavid Norris (Independent)
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I would like to strongly support this amendment and it is for that reason I added my name to it. First, this is a question of openness, transparency and accountability, of that there is no doubt. I remember when the Competition Authority legislation was going through this House under the direction of a previous Minister, who subsequently curiously became Minister for Health, the then Deputy Mary Harney, one element that was absent from it was a competition for the post of director. There was no provision for the advertising of the position. I understand from recollection that I managed, by amendment, to get that rectified.

It is very important that we pay respect to the whole area of mental health. This area has been sadly neglected in the past. We have a strategy to improve this situation. We cannot treat the post of director for mental health in any kind of offhand way. This is a post where we need the best and we get the best by publicly advertising the position and allowing somebody to achieve that position on the basis of the strict criteria mentioned by Senator MacSharry.

I assume the Minister will plead the time argument again but I do not accept the argument that was made in response to the previous amendment because, as I clearly pointed out, the Minister will be out of time anyway and so it becomes completely academic. By the end of three years the Minister will be out of time - the previous amendment was well argued. I do not accept the validity of the argument that what was proposed would put shackles on the Minister - far from it. It sought to simply ensure that the deed got done and the same principle applies to this amendment.

The post of director of mental health is a crucial one, particularly with the levels of depression, the incidence of suicide and the condition of facilities for people who are mentally unwell in this country. It would be very regrettable if we did not take this appointment with the utmost seriousness and do everything we can to ensure that this post is filled by the most appropriate person. Everybody would agree that the most appropriate way of filling it is by a proper publicly advertised search. I strongly support this amendment. I feel very strongly about this issue. A previous Government made a mistake at the heart of the Competition Bill and this House rectified that. I hope that again today this House will rectify what I think is an error. I do not believe it is malign or done in bad faith but I genuinely believe it is a serious flaw in the Bill.

Photo of Terry LeydenTerry Leyden (Fianna Fail)
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I call Senator James Gilroy.

Photo of John GilroyJohn Gilroy (Labour)
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I thought the Acting Chairman might have been referring to my cousin.

Photo of Terry LeydenTerry Leyden (Fianna Fail)
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My apologies, Senator.

Photo of John GilroyJohn Gilroy (Labour)
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Nobody inside or outside the House would disagree with the sentiments in the amendment requiring that the post of a director of mental health be established. It is vital that we do so but Senator Norris has recognised that the logic that pertained to the previous amendment pertains to this one.

Photo of David NorrisDavid Norris (Independent)
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The same lack of logic applies to it.

Photo of John GilroyJohn Gilroy (Labour)
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I think what the Senator said was that the same logic pertains to the previous amendment as pertains to this one. While he does not accept the logic, it is the same logic.

Photo of David NorrisDavid Norris (Independent)
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It is not logical.

Photo of John GilroyJohn Gilroy (Labour)
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I would again refer to the transitionary nature of this legislation. It might be reflected upon that if we were to go through a full process of recruiting a director of mental health services, in line with what is proposed in the amendment, the exact nature of the new organisation we are establishing has not become fully clear yet. If we were to appoint somebody on a full-time basis to a transitionary position, we would be making an error. That is not to say we do not agree that mental health services need to be given the very highest priority.

Photo of David NorrisDavid Norris (Independent)
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Surely it is at the most critical stage when it is in transition.

Photo of Colm BurkeColm Burke (Fine Gael)
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I support what Senator Gilroy said. The amendment is well intentioned As explained earlier by Senator Gilroy and the Minister, we are setting up a transitionary structure and to go through the process of advertising every position that will have to be filled would take too long and would slow down the whole process. When an entity is being restructured, the Minister has to have a fair degree of discretion in trying to get on with the job of bringing about reform.

Section 7, providing for the amendment of the principal Act, states: "An appointed director shall hold office as a member of the Directorate on such terms and conditions as the Minister, with the consent of the Minister for Public Expenditure and Reform, may determine." It is not only the Minister for Health who is involved in this, the Minister for Public Expenditure and Reform is also involved. The Minister must have discretion at this crucial time because we have to introduce a good deal of reform. Inserting this amendment in the legislation would only delay that process. I will not be supporting the amendment.

Photo of James ReillyJames Reilly (Dublin North, Fine Gael)
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As I outlined previously in tandem with the proposed new governance structure, new administrative structures will be put in place within the HSE to reflect the need for a greater operational management focus on the delivery of key services and greater transparency about funding service delivery and accountability. Planned new national director posts include a director of mental health services for the first time, and these planned posts are not a legislative matter and are separate from the Bill. Given the overall structure of the Bill and its purpose, which is to abolish the board of the HSE, I hope Senators will appreciate that it will not be possible to accept this amendment which relates to an administrative and not a legal issue.

I emphasise the importance of mental health and the importance the Government places on it, hence a planned new director of mental health services who will be a national director and be on the directorate of seven people. That speaks for itself in terms of the importance we place on mental health. To mix up what is an administrative matter with a legislative matter would be wrong. I do not propose to accept the amendment. I hope the Senator can understand that.

Photo of Terry LeydenTerry Leyden (Fianna Fail)
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Only Senator MacSharry has a right to respond.

Photo of Marc MacSharryMarc MacSharry (Fianna Fail)
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It is unfortunate this amendment cannot be taken on board. Failure to do so affects the credibility of the Bill and what it seeks to achieve. What it seeks to achieve is positive, and failure to accept this amendment weakens that and the credibility of the Bill, and it is wrong. The argument has been put forward that this is a temporary arrangement. The Minister said that the new agency will come into place in 2015 or 2016. Senator Norris highlighted the fact that God knows who will be Minister for Health or what Government will be in place then. I do not consider that to be a temporary period. That is the length of a political career for some people-----

Photo of James ReillyJames Reilly (Dublin North, Fine Gael)
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It tends to be temporary.

Photo of Marc MacSharryMarc MacSharry (Fianna Fail)
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-----as opposed to a temporary arrangement.

I would hate to think that a person who set out to employ someone in a public sector agency tomorrow would decide to pick whosoever he or she wished for the first three years and to have a look at the market thereafter. This does not represent good governance and seriously dents the legislation's credibility. These particular issues with the staffing, the directors and so on, are the thread between many of the amendments. They seriously affect the credibility of what without them would have been good but which with such issues is extremely weak. Therefore, I again must press the amendment.

Amendment put and declared lost.

12:30 pm

Photo of Terry LeydenTerry Leyden (Fianna Fail)
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Amendments Nos. 4 and 5 are related and may be discussed together, by agreement. Is that agreed? Agreed.

Photo of Marc MacSharryMarc MacSharry (Fianna Fail)
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I move amendment No. 4:


In page 9, line 15, to delete ?Subject to subsection (4),?.
The amendment proposes that subsection (4) should not apply to the appointment of the first director general. Obviously, my party disagrees with this and believes that under no circumstances should it apply to the first director general. Indeed, to my knowledge, the first director general will be a person who was hand-picked for the particular role anyway, without going through a recruitment process. I again make crystal clear this is not to impugn the qualifications or abilities of the person in question. However, regardless of how good the Minister knows that person to be or how good on paper the credentials may appear, a recruitment process is laid down in the Statute Book that must be followed but it is not. Consequently, he already has been in place as the Minister's interim figure and from henceforth, one will have this temporary little arrangement, which will last for up to three years or for God knows how long thereafter, depending presumably on who is in government. This again weakens what the legislation is trying to achieve. The Minister could usefully have considered this issue in more detail. Is the issue that there were cost implications arising from a recruitment process? Is this the reason there has been a reluctance to take the transparent route and put it out to tender? Alternatively, is there a fear that someone better might be found than currently is in place? Certainly, there appear to be 400,000 people looking for jobs in the present market and I am sure we did not simply happen to have the five or six directors already on the books. This provision weakens the Bill and I intend to press this amendment

Photo of Thomas ByrneThomas Byrne (Fianna Fail)
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I second this amendment in the strongest possible terms. The Government proposes to hand-pick an individual and I must note this debate is not about the individual person but about the principle itself. He could be the saviour of the health service for all one knows. However, the point is one will not know that unless there is an open recruitment process. In its programme for Government, the Administration proposed that all such appointments would be made through an open public process but that is not proposed in this case. Tosach maith leath na hoibre and while a good start is half the job, the Minister has not made a good start in this regard. He has gone completely against the programme for Government. The people are crying out for more open and transparent Government but are not getting it from Fine Gael and the Labour Party. It is all talk and no action. While claims are made that this or that is being reformed, there is no action. It is going back to the old ways against which the public voted in the February 2011 election. The Minister will respond by stating we are lucky to have this individual. Perhaps we will be and I hope so, but that is the Minister's opinion. In the case of all the people appointed over the years, I am sure the Ministers concerned thought the country was lucky to have them. However, that is not the point, which is that these appointments are supposed to be taken out of the political process. Such appointments are supposed to be made in a transparent manner but that has not been done in this case. A time will come, within the next few months, when Members will scrutinise the programme for Government to ascertain what is or is not being done. On the question of openness and transparency, the Government will receive a big fail mark and this is just one example of it.

Photo of James ReillyJames Reilly (Dublin North, Fine Gael)
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Section 16E provides for the appointment of a director general under subsection (4). While the first director general will be appointed by the Minister, subsequent directors general will be appointed by the Minister following a recruitment process under the Public Service Management (Recruitment and Appointments) Act 2004. I note that subsection (4) is not unique. There are precedents in legislation to provide that the first person who is appointed to an office may be appointed by a Minister, as envisaged under subsection (4). These include legislative provisions for the charities regulatory authority, the Residential Institutions Statutory Fund Board, the qualifications and quality assurance authority of Ireland and the National Tourism Development Authority. In my view, the use of this provision is the most practical way to advance the new directorate arrangements.

In response to Senator Byrne, who claims there has been no action, there has been a lot of action. There has been an 85% reduction in the number of people who wait a year for an inpatient procedure. There has been a 91% reduction in the number of people who wait nine months or longer. There has been an 18% reduction in those who wait three months or longer for an inpatient procedure. The number of people who are obliged to endure long trolley waits is more than 16,000 smaller than was the case last year. A stroke programme has been put in place which is saving one life a week, as well as pre-empting the need for three others to end up in long-term care per week. A transitional care programme is being rolled out, which affords people who are older and frail a much better service in so far as they will be admitted to a specialist ward where their medical problems will be dealt with and they can commence their rehabilitation immediately. If this will take longer than three or four days, they can move to a transitional facility in which it can continue for up to ten weeks. Moreover, if it becomes apparent early on that they will need long-term care, such care will be available in a transitional setting until they find a place of their choice. Consequently, I must completely reject the contention that nothing has been done. More has been done within the past 18 months than was done in the previous ten years.

Photo of Thomas ByrneThomas Byrne (Fianna Fail)
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On openness and transparency.

Photo of James ReillyJames Reilly (Dublin North, Fine Gael)
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I will not accept this amendment because I wish to expedite the health reform process and to do that I must act fast. Mr. Tony O'Brien has my full confidence, both in his current role as deputy chief executive officer of the Health Service Executive and as director general-designate of the new structure.

Photo of Marc MacSharryMarc MacSharry (Fianna Fail)
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I do not doubt the Minister's confidence in him and I do not doubt but that he would sail through a recruitment process. However, members should have no fear of a recruitment process because they certainly will not do any worse then have him. I am sure he is doing a good job in the eyes of the Minister. My colleague, Senator Byrne, was speaking specifically on transparency and openness in that area and his point did not pertain to the Minister's mantra on all that has been achieved. There is no need for me to go into the cost overruns and all the other things that have been well covered in the media in recent times. However, specifically on this issue, I will repeat a point rightly made to the Minister by some of the Independent Senators previously. While Fianna Fáil will support this Bill, it seeks to have it improved in the public interest. I do not believe the public interest is served by stating the Minister's man is a good man in whom the Minister has every confidence and that the Minister has appointed him deputy chief executive officer in the interim before making him the new director general. I am obliged to note that were a Fianna Fáil Minister sitting in the ministerial chair and were Deputy Reilly sitting over here, he would be apoplectic with demands and questions as to how Fianna Fáil could preside over the appointment of someone, regardless of their qualifications.

Photo of John GilroyJohn Gilroy (Labour)
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How can Senator MacSharry know that?

Photo of James ReillyJames Reilly (Dublin North, Fine Gael)
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They did.

Photo of Thomas ByrneThomas Byrne (Fianna Fail)
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I hope the Minister can provide many examples and precedents for what he is doing now.

Photo of Marc MacSharryMarc MacSharry (Fianna Fail)
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It could be the highest medically qualified or management consultant in the world.

Photo of Terry LeydenTerry Leyden (Fianna Fail)
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Senator MacSharry, without interruption.

Photo of Marc MacSharryMarc MacSharry (Fianna Fail)
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As regards precedents for a scenario, if such a precedent exists, it is wrong and is a matter that should be visited at the first legislative opportunity afforded to each line Minister. This is because there is in place a recruitment process and there is a scenario that must be followed. This provision shows blatant disregard for that and it is being used as an excuse to state this is how it must be done because one wants things done quickly and it is the right thing to do. Mr. Joe O'Toole, a former Senator of many years standing, always used to make the point that rushed legislation is bad legislation. Interim scenarios and proposals like this are wrong. Moreover, as I believe the Minister also knows this, there must be some other reason to prevent the adoption of due process in this regard.

There must be another reason for not allowing these people through the recruitment process quickly. It could be done to give the public confidence and cover all of the bases in terms of what the Minister is trying to achieve and what we on this side of the House are anxious to support. We will press the amendment.

Question put: "That the words proposed to be deleted stand."

The Seanad divided: Tá, 26; Níl, 15.

Tellers: Tá, Senators Paul Coghlan and Aideen Hayden; Níl, Senators Paschal Mooney and Diarmuid Wilson.

Question declared carried.

Amendment declared lost.

12:45 pm

Photo of Denis O'DonovanDenis O'Donovan (Fianna Fail)
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I welcome back the Minister. Amendment No. 5 has already been discussed with amendment No. 4.

Photo of Marc MacSharryMarc MacSharry (Fianna Fail)
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I move amendment No. 5:


In page 9, to delete lines 25 and 26.

Photo of Thomas ByrneThomas Byrne (Fianna Fail)
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I second the amendment.

Question, "That the words proposed to be deleted stand", put and declared carried.

Amendment declared lost.

Photo of Marc MacSharryMarc MacSharry (Fianna Fail)
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I move amendment No. 6:


In page 10, line 17, after "opinion," to insert the following:
"such opinion being corroborated by independent written medical advice,".

Photo of Thomas ByrneThomas Byrne (Fianna Fail)
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I second the amendment.

Photo of Colm BurkeColm Burke (Fine Gael)
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The proposal is that the words "such opinion being corroborated by independent written medical advice," be inserted. I am a little concerned as the proposal does not make any provision, for example, if a person refuses to turn up to get independent medical advice. The legislation would not provide for any requirement for the person to turn up and the Minister could therefore be caught in a dilemma where a person could not be removed because of the proposed clause. On those grounds we could not support the amendment, as it would leave the Minister in a legal limbo, causing difficulty for a Minister in removing a person even if there are valid grounds. I do not support the amendment.

Photo of John GilroyJohn Gilroy (Labour)
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The amendment seems to do something that is implicit within the section under discussion. That is supported by any number of existing employment law provisions. To accept the amendment would be unnecessary, as its intent is implicit in the section.

Amendment, by leave, withdrawn.

Photo of Denis O'DonovanDenis O'Donovan (Fianna Fail)
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Amendments Nos. 7 and 8 are related and may be discussed together by agreement. Is that agreed? Agreed.

Photo of Sean BarrettSean Barrett (Independent)
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I move amendment No. 7:


In page 13, line 15, after "reasons" to insert ", including risk assessment thereof,".
This amendment relates to the discussion we had the last day on the rather strange application of the sub judice rule, which we all accept. The section indicates the director general is not required to give an answer to any Oireachtas committee on any matter relating to the administration of the executive that is or is likely to be the subject of proceedings before a court or tribunal of the State. We believe the term "likely to be" is weak and this amendment asks that there should be some risk assessment of the likelihood. We cannot have somebody refusing to answer questions with an excuse that it could be the subject of some proceedings. We should know where the advice comes from and the risk assessment process used. It is a technique widely used in Government bodies.

Amendment No. 8 deals with what happens elsewhere in the Oireachtas where a Member feels there was a misleading response or a refusal to answer. The Ceann Comhairle would intervene and I gather the current holder of the post sometimes does this to the assistance of Deputies, contacting Departments and indicating that a question should be answered in a more complete way.

These amendments were put down before the recent incident where a person walked out of a committee. They would protect Parliament against a defence from a person pleading an inability to answer a question because it might be the subject of proceedings elsewhere. In such a case the person should indicate the advice and risk assessment. It should be possible for a member of a committee to ask the Ceann Comhairle, rather than a court, to help in such matters. The Ceann Comhairle seems to have effectively taken on this role with regard to answers given during Question Time in the Dáil. Public servants should answer questions that are asked by an Oireachtas committee or by Members.

We seek to protect Parliament against almost a shrug of the shoulder and individuals saying there might be a case and, therefore, they will not answer questions. That is significant in a Parliament and we seek to include those two protections so that Parliament finds out what is going on, including, as we on this side of the House have said, support for what the Minister is trying to reform. Involving Parliament and parliamentarians is better than individuals saying they will not answer questions because they might be the subject of proceedings. These are two ways to allow that to happen. If the risk assessment shows there is a very strong chance something will appear in court or, if the Ceann Comhairle has formed the same view, the individual refusing to answer the questions has that degree of protection.

12:50 pm

Photo of John CrownJohn Crown (Independent)
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I second Senator Barrett's amendment. In an organisation whose central flaw is generally recognised as having deliberately or inadvertently created a barrier between those who run the health service and those who are elected to oversee the public purse and public services, it does not seem to make sense to allow any additional barriers during what one hopes will be the short term of the remainder of this organisation and to give it additional protections against answerability. In the absence of the amendment, it seems to me that this is the case.

Photo of Marc MacSharryMarc MacSharry (Fianna Fail)
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I support these amendments and think there is no reason not to accept them. It is vital the public has confidence that when those holding key positions appear before Oireachtas committees, there is not a refuge which can be mischievously used. It is not that that would be the case but Senators mentioned the recent appearance at the Committee of Public Accounts, which was clearly unacceptable. While this clause is different and there may be very clear reasons something cannot be discussed, it is important they are clearly stated. The risk assessment suggested by Senators Crown and Barrett is important and, for that reason, we support the amendments.

Photo of John GilroyJohn Gilroy (Labour)
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I certainly understand the logic of this amendment, for which I have some sympathy. However, I am a bit concerned about the generality of the provision and about adding something so general into this legislation which might well apply to as many pieces of legislation we can think of. Perhaps there are other ways to achieve the objective of this amendment. The Minister might do this by ministerial order, directive or otherwise as opposed to inserting it in the Bill. I fear that if we insert it into this legislation, there is no reason a debate would not open up on why we could not insert it into other legislation.

Photo of James ReillyJames Reilly (Dublin North, Fine Gael)
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In regard to amendment No. 7, Senators will know that the provisions in the Bill are based on many precedents in other legislation. While I am aware that Senators are not happy with these precedents, I am conscious of the need for this type of provision. The provisions are not intended as a means to allow a person appearing before an Oireachtas committee to evade questions but, on the contrary, are intended to avoid any difficulties with a potential court case. I have looked at the provisions as a whole and I point out that under subsection (3), the director general must give reasons in writing where he or she believes a matter is likely to be the subject of proceedings before a court or a tribunal. This seems to give an Oireachtas committee a clear picture as to why the director general has taken a view that a matter is likely to be the subject of proceedings. If the issues arise when the director general is actually before the committee, I would expect the director general to give the reasons to the committee at that point. This is a legal standard across virtually all Departments.

Photo of Sean BarrettSean Barrett (Independent)
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I am worried about the precedents. The Minister mentioned some of the earlier ones in tourism and quality assurance. That worries me because I think the precedents in both of those were bad, but that is probably not a topic for conversation now. Subsection (8) provides that one can go to the High Court or that the Chairman of the Oireachtas committee, acting on behalf of the committee, can withdraw the request. We discussed this on Committee Stage but I do not know what "likely to lead to" means. It is a get-out clause for the Sir Humphreys of this world to say they are not answering something. There is no assessment of whether the Ceann Comhairle agrees or whether there is a risk assessment stating there is a 10% or a 90% chance there is likely to be a case.

Over the lifetime of this Government, we are steadily finding that reforms of public service are not taking place. These get-out clauses, even if they have precedents, are undesirable for a country which is facing our problems and which is effectively in receivership from the troika. Some of those cosy customs must be questioned and I will question the get out-clause where individuals can say they will not answer a question in case it is likely to lead to litigation. It is time for individuals using that defence to stump up some proof and tell us what it is or convince the Ceann Comhairle, which one has to do in the case of answers in the Dáil. Is not answering questions acceptable behaviour given the dire straits the country is in?

Amendment put and declared lost.

Photo of Sean BarrettSean Barrett (Independent)
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I move amendment No. 8:


In page 13, line 21, after "matter" to insert "and referred the matter to the Ceann Comhairle".

Photo of John CrownJohn Crown (Independent)
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I second the amendment.

Amendment put and declared lost.

Government amendment No. 9: In page 17, line 18, to delete "practice" and substitute "conduct".

Photo of James ReillyJames Reilly (Dublin North, Fine Gael)
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This is a drafting amendment to replace the term "codes of practice" with "codes of conduct". Codes of conduct is the expression used in the original section in the Health Act 2004 and I ask Senators to accept this amendment.

Photo of Thomas ByrneThomas Byrne (Fianna Fail)
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It is just gas. We are reforming the health service and we have a Bill which is a carbon copy of what was there before. One word is different in the Minister's Bill and he has decided to go back to the way it was before. Just in case we might change anything, we had better keep the exact wording. This emphasises the point that this is a sham. There is no reality to what is going on here. It is promises to the public but the reality of change does not exist and it is so obvious with an amendment like this and the reasons for it.

Photo of John GilroyJohn Gilroy (Labour)
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I do not know what to make of that last contribution. The term "codes of conduct" is the accepted term. If we want to change the meaning of "codes of conduct", we can do that at Senator Byrne's request. The attack on the Minister is just unfair and is meaningless.

Photo of Colm BurkeColm Burke (Fine Gael)
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I agree with my colleague, Senator Gilroy. Courts have given interpretations to the words "conduct" and "practice". They have two different interpretations. The Minister's amendment is being put forward because we have interpretations. The reason this amendment is being tabled is to ensure there is no misinterpretation in court proceedings at a future date or in any kind of hearing in regard to this aspect of the legislation. The amendment should be supported.

Photo of Denis O'DonovanDenis O'Donovan (Fianna Fail)
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Is Senator Byrne opposing the amendment?

Photo of Thomas ByrneThomas Byrne (Fianna Fail)
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I am opposing it to make the point that changes-----

1:00 pm

Photo of James ReillyJames Reilly (Dublin North, Fine Gael)
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Codes of practice are more appropriate to health professionals and this is covered in other legislation. Codes of conduct better capture the object of the Health Act 2007, as amended, which is a code for employees that sets out the procedures to be used in specific ethical situations.

Amendment agreed to.

Government amendment No. 10: In page 19, to delete lines 5 to 12 and substitute the following: "(d) contain estimates of the number of employees of service providers under section 38 engaged in the provision of such services and which relate to the period of the service plan and the services to which it relates,".

Photo of James ReillyJames Reilly (Dublin North, Fine Gael)
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This is a technical amendment to clarify that all relevant employees of the service providers for the HSE are included in the HSE service plan. I ask, therefore, that Senators accept it.

Photo of Thomas ByrneThomas Byrne (Fianna Fail)
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Is there scope for rationalisation of all these organisations? They all do tremendous work but there are many of them and it is an inefficient way to run the health service. I acknowledge this is the way it has built up over many years and we will take the flak for that. Many of them are charities. They do outstanding work and run their own separate fund raisers. There seems to be a great deal of doubling up and I wonder whether this could be addressed in the kindest way in reforming the health service, while acknowledging the origins of these organisations, their purpose and where they are coming from. The reality is most of them are part and parcel of the national health service.

Photo of James ReillyJames Reilly (Dublin North, Fine Gael)
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I accept what the Senator said. We are all trying to rationalise services but that is a slightly separate issue from the amendment. Service providers are agencies that provide services on behalf of the HSE under section 8 of the Health Act 2004. Under the Bill, the HSE must include estimates of employees of service providers in the service plan and this technical amendment is to ensure the inclusion of all relevant employees involved in the provision of services and not just front-line staff. All relevant employees, for example, include payroll, ICT and secretarial support but I take on board what the Senator said. I am particularly concerned that we do not sign service level agreements with organisations that do not provide us the full details of the range of people they pay and their salaries, functions and grades. Failure to co-operate will lead to problems for those organisations and I am, therefore, giving them fair warning.

Amendment agreed to.

Photo of Catherine NooneCatherine Noone (Fine Gael)
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Amendments Nos. 11 and 12 are related and may be discussed together by agreement.

Photo of Marc MacSharryMarc MacSharry (Fianna Fail)
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I move amendment No. 11:


In page 19, line 14, after ?Minister,? to insert the following:
"including performance targets set by the Minister,".
It is vitally important that targets are set by the Minister and included in the service plan. That is reasonable and it would give people something to aim for. Sometimes targets are not reached but it is important to have a route to try to meaningfully achieve them.

The section states they should "accord with the wishes of the Minister". The outcome of public servants delivering legislation on the basis of Government policy should not be to loosely resemble the will of the Government. The legislation should comply with the Minister's priorities and Government policy. This wording is too loose and we are back to the Sir Humphrey safety valve. We have excellent people who are well able to perform to targets and comply with the wishes and instructions of the Government of the day and the policy as laid down.

Photo of Thomas ByrneThomas Byrne (Fianna Fail)
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I second the amendment.

Photo of John GilroyJohn Gilroy (Labour)
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I have a great deal of sympathy for the amendments. Are they, however, too specific having regard to the transitional nature of the legislation? I would welcome the Minister's view on that.

Photo of James ReillyJames Reilly (Dublin North, Fine Gael)
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I can help the Senators. I indicated on Committee Stage that I would give further consideration to these amendments, which relate to how the HSE service plan deals with priorities and performance targets set by the Minister. Amendment No. 11 provides that performance targets should be included with any other information the Minister specifies should be contained in the service plan and amendment No. 12 is concerned with the service plan complying with any priorities set by him or her, which is fair enough. However, in considering them, we must examine how the Bill addresses the issues raised. In preparing the plan, the HSE must have regard to the performance targets and priorities specified by the Minister under section 31(5) while section 31(4) sets out the information that must be contained in the service plan, including under paragraph (e) any information specified by the Minister. In addition, section 31(9) allows the Minister to direct the HSE to amend the service plan if the plan has been prepared without sufficient regard to priorities and performance targets.

Section 37 of the Health Act 2004 also provides that the annual report of the HSE must include a report on the implementation of the service plan. The executive is expected to take proper account of priorities set by the Minister in delivering its services. The concerns of the Senators are, therefore, dealt with in other ways under the legislation. I do not propose to accept the amendments.

Amendment put and declared lost.

Amendment No. 12 not moved.

Government amendment No. 13: In page 21, line 46, after "accordance" to insert "with".

Photo of James ReillyJames Reilly (Dublin North, Fine Gael)
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This is a minor technical amendment that I ask Senators to accept.

Amendment agreed to.

Photo of Sean BarrettSean Barrett (Independent)
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I move amendment No. 14:


In page 22, line 35, to delete ?Directorate? and substitute the following:
"Irish Auditing and Accounting Supervisory Authority".
This relates to the important function of the Accounting Officer and the audit committee and it is recognised as having been a problem on many occasions in the past. It is why Ms Niamh Brennan, professor of accounting in UCD, was asked to examine this a number of years ago. My colleague and friend, Senator Colm Burke, has raised his concern several times about people without qualifications being in charge of audit and accounting functions. The amendment we tabled on Committee Stage provided that members of professional accounting bodies should be members of the audit committee but it was rejected by the Minster because he felt other qualifications were needed. Protection against this problem is still needed and that is why I have asked that the Irish Auditing and Accounting Supervisory Authority, IAASA, should at least vet people's qualifications in order that we do not rely on the opinion of the directorate which we have heard repeatedly is a collection of insiders anyway. Any attempt we have made to prise that open has been resisted. The IAASA is the regulatory body for auditing and accounting and the Minister should seek its opinion to establish whether people are qualified to carry out auditing and accounting of books with tens of billions of euro on them in recognition of the fact that this has been a problem in the past.

Photo of John CrownJohn Crown (Independent)
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I second the amendment.

Photo of James ReillyJames Reilly (Dublin North, Fine Gael)
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I appreciate the sentiment behind the amendment. The Senator wishes to be assured that members of the audit committee are suitably qualified to carry out their duties to a high standard. While it makes sense that the HSE audit committee includes people who have an auditing or accountancy background, there is merit in bringing other valuable experience and qualifications to the table such as those of business and other relevant groups. I am keen for that reason not to overly restrict the membership. The net effect of the amendment would be that another body would decide which people had the skills to act as members of the HSE audit committee. This is not an appropriate approach and it should be a matter for the directorate to exercise sound judgment in appointing a balance of suitably qualified members to the committee.

We have two reports, the Ogden report and one by PA Consulting, which I hope to publish shortly and bring to Cabinet. Ogden has highlighted the issues and difficulties within the HSE relating to financial matters and PA Consulting confirmed them and made recommendations, which we are putting in place. This relates to having a sufficient number of people with the necessary financial qualifications to be in charge of the budgets that pertain in the HSE. I hope the Senator will understand that I cannot accept the amendment.

1:10 pm

Photo of Sean BarrettSean Barrett (Independent)
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We regularly get the wrong headlines, to the effect that the HSE is ¤450 million or ¤750 million over budget, yet the Minister turns down an amendment that would try to address the problem. There are serious budgetary problems. I have sided with the Minister when he has been unfairly criticised but every time we have made a suggestion to help him with these reforms, we have received a closed response. He could provide for no fewer than four people who, in the opinion in the directorate, have the relevant skills. These people are heavily enmeshed and embedded in red ink and we are being asked to endorse them but I will not do so. The Minister has serious financial problems and I have offered him a helpful solution. I offered him a helpful solution the last day but the red ink in the health service shows no sign of going away.

Photo of James ReillyJames Reilly (Dublin North, Fine Gael)
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I do not object to some members being advised by, or coming from, this group. Perhaps rather than accepting the amendment, I can consider it when the Bill is going through the Dáil and come up with a modified wording that will allow the august committee to which the Senator alluded, the Irish Auditing and Accounting Supervisory Authority, IAASA, to have a number of members on the auditing committee. However, I will be careful about this because I do not want to insult those who do a good auditing job. Budgets over run at a much lower level than at auditing committee level and, therefore, I hope the Senator will find that acceptable.

Photo of Sean BarrettSean Barrett (Independent)
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I thank the Minister for that suggestion. I look forward to seeing how this develops in the other House. I will place the amendment in the capable hands of the Minister.

Amendment, by leave, withdrawn.

Photo of Marc MacSharryMarc MacSharry (Fianna Fail)
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I move amendment No. 15:


In page 26, between lines 37 and 38, to insert the following:?23.?Any officer/employee of the Executive shall be tax resident in Ireland for the duration of his or her employment by the Executive.?.
My colleague, Senator Thomas Byrne, who had to leave, spoke on this amendment the last day. It is important that any advisers or consultants the Minister is seeking shall be tax resident on the island of Ireland. The amendment refers to Ireland but I do not want to exclude the many workers in the HSE who may live in Northern Ireland. The Minister could apply the same goodwill he applied to the amendment proposed by Senator Barrett and I can withdraw it.

Photo of David CullinaneDavid Cullinane (Sinn Fein)
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I second the amendment and seek clarification. When the amendment refers to Ireland, we want to be sure it means the island of Ireland. People living in Down and Armagh work for the HSE across the Border. The wording of the amendment concerns us but I would be happy if we get clarification from the proposer. I am also conscious that when we talk about Ireland in legislative terms, we must include the Republic of Ireland and the North of Ireland separately. I do not have a difficulty with the logic of the amendment.

Photo of John GilroyJohn Gilroy (Labour)
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I seek further clarification on the amendment. I am not sure of the meaning of tax resident in Ireland. It seems that tax is collected by the Revenue Commissioners of the Republic of Ireland. Does the motion also purport to allow Her Majesty's Government to collect the tax if the person resides in Northern Ireland? There is ambiguity in the amendment.

Photo of Colm BurkeColm Burke (Fine Gael)
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My concern is where the HSE employs a company, which may be tax resident in Ireland. Does the amendment confuse the matter where the worker, while employed by the company, may not be resident for tax purposes in Ireland? It could cause complications.

Photo of James ReillyJames Reilly (Dublin North, Fine Gael)
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I remind Senators that the amendment concerns HSE employees, not other persons. Insisting that HSE employees are tax resident in the State would more than likely fall foul of EU and discriminatory legislation rules.

I will set out the likely tax treatment in regard to income arising from individuals engaged by the HSE who are not resident in the State. Notwithstanding any of the provisions of the Tax Acts, the income would be chargeable to tax by virtue of section 19 of the Taxes Consolidation Act 1997, as an annuity, pension or stipend payable out of the public revenue of the State. This charge is unfettered by considerations of residency of the individual or where the duties are performed. Where the individual is tax resident in a country with which the State has a tax treaty, income will generally remain taxable in the state where duties are performed. I can only assume that, in the vast majority of cases, HSE employees perform their duties in this State. Where the individual is tax resident in a country with which Ireland does not have a tax treaty, the income is taxable in this State. Some individuals employed by the HSE may have non-HSE income and the taxation of such income is provided for in the Taxes Consolidation Act. I will not accept the amendment.

Amendment put and declared lost.

Bill, as amended, received for final consideration and passed.

Sitting suspended at 1.50 p.m. and resumed at 4.30 p.m.