Alice-Mary Higgins (Independent) | Oireachtas source

I will continue on amendments Nos. 57 to 60, inclusive. Amendment No. 69 has now been included in that grouping if I am correct because it is technical.

I had outlined many of my main concerns, which were with section 11 and the rather excessive powers given to the Minister to "give a direction in writing to the Agency" on "any matter ... referred to in this Act" or any other Act and, indeed, "the implementation of any policy or objective of the Minister or the Government." That is the context, in that I would not be as concerned about the language in section 15 except that it is kind of complemented by those very overreaching powers under section 11.

In section 15, the board has to have the systems, procedures and practices in place to ensure "compliance with the policies (whether contained in guidelines, codes or other documents, or any combination of them) of the Government or a Minister of the Government". It comes from that concern that there is not clarity. Normally, I would read that and assume that because it states that these "policies may affect or relate to the functions of the Agency", the intention here is around health and safety codes, guidelines on best practices and so forth. However, the phrase "other documents" is a little unclear. I would like if that was clearer in terms of what is meant by that specifically. Some of my amendments seek to address that.

This also sits into the wider concern of the fact that these seem like they could be any policy of any Department. I would not normally jump to that assumption except that section 11 is really clear that it could be any policy of the Minister or Government. Therefore, if a Minister of Defence decides we want to focus a lot on defence research, which is one of the topics we will be discussing later and which is a real danger at the moment, that might become a memo that would then go to the border agency with which it would then be complying. That is the kind of concern I have. I do not have a concern about guidelines that are clear or that are policy where there is something like, for example, best practice, employment regulations and so forth. My amendments try to fix that.

Amendment no. 58 proposes to delete the phrase “(whether contained in guidelines, codes or other documents ... )” Amendment No. 59 tries to put a very reasonable limit, which is to replace "guidelines, codes or other documents" with “(which are provided for by legislation or statutory instrument)”. It says that of course the agency should be ready and able to comply with any policies that are provided for by legislation or statutory instrument. That would cover all the very reasonable scenarios, for example, where the Minister for Health or Minister for Transport may have legislation with which they need the agency to comply. There may be many other Departments that for very good reason have guidelines or codes that touch upon the work of the agency. However, all of those guidelines or codes should be at least underpinned or provided for by legislation or statutory instrument. Bear in mind that in some cases, it may simply be that there is a statutory instrument to state that the Minister for Health may make regulations. Therefore, we are not saying that every detail of the specific proposal has to be there, but there is a traceability to why people are being asked to comply with this policy and on what authority. Crucially, it is only on the authority given to a Minister from the Oireachtas through legislation or statutory instrument. That is the important point. When we talk about the balance of powers and the Executive and the Legislature, we do not normally give completely blank cheques that say someone can tell people to do anything. We simply say they can be told what to do according to what is provided for by law. That is a reasonable caveat and limitation to place.

Amendment No. 60 seeks to have a limitation whereby the compliance is only in respect of the Minister or relevant Minister. Basically, they have to be ready to comply with Ministers or the relevant Minister for the purposes of this Act. To be honest; I believe amendment No. 59 is the best of these options because it sets out a clear limit around legislation or statutory instrument. I can see reasons whereby it may be necessary for the agency to comply with regulations from another Minister who is not the Minister for Further and Higher Education, Research, Innovation and Science. I can envisage those scenarios. I would like the Minister of State to look at those amendments and at amendment No. 59 in particular. I believe it is a very reasonable caveat to add.