Header Item Prelude
 Header Item Business of Seanad
 Header Item Order of Business
 Header Item Social Welfare and Pensions (No. 2) Bill 2013: Report and Final Stages
 Header Item Child and Family Agency Bill 2013: Committee Stage
 Header Item Adjournment Matters
 Header Item Medical Aids and Appliances Provision

Tuesday, 3 December 2013

Seanad Éireann Debate
Vol. 228 No. 1

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Chuaigh an Cathaoirleach i gceannas ar 14:30:00

Machnamh agus Paidir.

Reflection and Prayer.


Business of Seanad

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke I have notice from Senator Marie Moloney that, on the motion for the Adjournment of the House today, she proposes to raise the following matter:

The need for the Minister for Health to ensure the HSE provides a bra fitting service for women who have had a mastectomy and who have a prosthesis.

  I regard the matter as suitable for discussion on the Adjournment and it will be taken at the conclusion of business.

Order of Business

Senator Maurice Cummins: Information on Maurice Cummins Zoom on Maurice Cummins The Order of Business is No. 1, Social Welfare and Pensions (No. 2) Bill 2013 - Report and Final Stages, to be taken on the conclusion of the Order of Business and to conclude at 5.30 p.m., if not previously concluded; and No. 2, Child and Family Agency Bill 2013 - Committee Stage, to be taken at 5.30 p.m.

Senator Darragh O'Brien: Information on Darragh O'Brien Zoom on Darragh O'Brien I refer to the matter on the Adjournment proposed by Senator Marie Moloney. I am glad she has raised this matter as I raised this very point in the House. In the north Dublin area there has been no funding for breast prosthesis since last June. Fifty-five women in north Dublin are waiting for breast prosthesis. I hope Senator Moloney gets a decent response from the Minister for Health because he has not responded to any of my queries on the matter.

  I have raised the issue of the ongoing delay in the publication of the HSE service plan. I mentioned three weeks ago that I had a very strange, unsettling feeling that one of the reasons for this delay was that the Minister for Health would publish the HSE service plan when these Houses are in recess. As every week passes, it is my belief that this is what will happen. I ask the Leader if he has a publication date for the HSE service plan which is already with the Minister. Will the service plan be debated in these Houses before the Christmas recess? I ask the Leader to ask the Government to publish Tony O'Brien's letter to the Minister, Deputy Reilly, stating that the €113 million cuts in medical cards was unsustainable and against the advice of the HSE and the Department of Health. This is a seven page letter which is apparently private but it is all over the Sunday newspapers. If that is the case, this House and the other House should have sight of that letter. I ask the Leader if the Minister of Health will publish that letter.   Is the figure for medical card "probity", as the Government is putting it but a word I use loosely, €113 million, as confirmed by the Tánaiste and the Minister for Public Expenditure and Reform, Deputy Howlin, or will it be less, as intimated by the Taoiseach? Furthermore, is the figure for savings in health next year €666 million or is it more? These questions remain unanswered regardless of how often our health spokesperson, Senator MacSharry, and I raise them in the House.

  I propose an amendment to the Order of Business calling on the Minister for Health, Deputy Reilly, to attend the House for one hour to answer these questions. I will withdraw the amendment if the Leader has the answers, but I propose that the Minister attend the House for an hour's special debate on the HSE service plan and the savings figures.

  If Senators are honest with themselves, none can say that the health service is not in meltdown. Senator Moloney has raised an Adjournment matter today, but we have all dealt with cases involving medical cards. I received a call from an individual yesterday who had cancer and whose medical card had been withdrawn. The health system is crumbling before our eyes and the Minister is incapable of dealing with it. As I am sure other colleagues are, I am happy to assist him in teasing out the points of the HSE service plan. If the Government publishes the plan while the Houses are in recess over the Christmas holidays, it will be seen as a stroke. The Minister is well used to strokes. That is why I do not trust him.

Senator Ivana Bacik: Information on Ivana Bacik Zoom on Ivana Bacik I welcome the good news that the Minister for Justice and Equality this afternoon signed the package of bankruptcy reforms that will put into effect the new provisions on bankruptcy contained in the Personal Insolvency Act. People will be capable of automatic discharge from bankruptcy after three years instead of 12 years. We all acknowledge that this will make a significant difference to many of those struggling with debt burdens. This morning, someone who described herself as being one of the first people most likely to avail of the new provisions stated that it was like a weight lifting from her shoulders when she heard of the new measures. I am delighted that the measures have finally been commenced.

  I call on the Leader for a debate on white collar crime in light of yesterday's sentencing in the Thomas Byrne case. It was the largest fraud trial prosecuted in the history of the State and raised a number of general questions about the nature of white collar crime and its prosecution and detection. There are also questions of whistleblower protection. Happily, we now have whistleblower protection laws. The fraud and its scale only came to light as a result of brave action by a whistleblower within the firm. The Law Society is dealing with some of the questions arising from the case. I ask for a debate on this issue in the new year.

  Disclosures in recent days have given rise to questions about the regulation of charities. Will the Leader arrange a debate on this matter in the new year? In the Labour Party's Private Members' time some months ago, we initiated a debate on the implementation of the 2009 charities legislation. I am delighted that the Minister has announced that the charities regulatory authority will be put in place, at least in an initial format, in the first half of next year, but I would like a debate in the early days of the new year in order to hear directly from the Minister about what he is proposing for the regulation of charities, which is clearly long overdue.

Senator Fiach Mac Conghail: Information on Fiach Mac Conghail Zoom on Fiach Mac Conghail As recently as 1 May, we had an all-party agreement on charities. It was not just the Labour Party. The motion recalled that the Charities Act 2009 had been enacted with the aim of supporting and enhancing public trust and confidence. Senator Bacik mentioned an initiative taken by the Minister for Justice and Equality, Deputy Shatter, but a strange word is used in today's The Irish Times, which quotes the Minister as stating: "It is envisaged that the authority will be established in shadow form." What does this mean? The Government has responded efficiently and creatively in terms of philanthropy and giving but a concern has been raised by the not-for-profit sector and the arts and charity communities.  The Government has responded quite efficiently and creatively to philanthropy and giving, but we have a concern which stems from the not-for-profit, arts, community and charity sectors. For trust and confidence to be maintained we need a charities regulator and, to that end, we require the Charities Act to be completed. There is an element of foot dragging. The Minister conducted a public consultation which concluded on 20 March 2013, so I would like to see what emerged from that process.

  According to the 2009 Irish non-profit and knowledge exchange, in Ireland the not-for-profit sector employs in excess of 100,000 people across the community, voluntary, sports and cultural sectors. There are approximately 11,700 organisations, of which 8,000 are registered charities with a turnover of €5.7 billion. This means the not-for-profit sector accounts for 3.25% of national income. We still await an update on the progress of the charities legislation. The word "shadow" concerns me greatly because I think it amounts to foot dragging. I ask the Leader for an update on when we can introduce a charities regulator, as well as implementing the Charities Act for the confidence and benefit of charities. They are seeking these measures to increase trust and transparency. In that way, those who donate money will know where it is going.

Senator David Norris: Information on David P.B. Norris Zoom on David P.B. Norris With your permission, a Chathaoirligh, I wish to recognise the presence in the Visitors Gallery of Ms Alice Leahy of TRUST. I am not sure if I would describe it as a charity, but it is a remarkable organisation that does good works. I was honoured to have her as one of my guests today at lunch. We have been fortunate with the weather so far, but we are moving into a period which will be severely cold.

  A number of years ago, the previous Minister with responsibility for the environment, Mr. John Gormley, visited TRUST's premises in Patrick Street, Dublin, and was so impressed that he asked what he could do to help. The cold weather was coming in, so he returned to the Oireachtas and gave instructions to open a cold weather shelter which was enormously successful. If we want to save lives over the Christmas period, we need to do this again. I ask the Leader, Senator Cummins, to request the Government to open a cold weather shelter.

  Some homeless people can be difficult and awkward. A lady once lived across the road in a cardboard box on the steps of our offices which were located there many years ago. She did not want to go anywhere. She knew where she wanted to be and had her own routine. The former Senator Brendan Ryan and I got her a blanket, which was the only thing we could do at Christmas. I think she is dead now.

  We have the capacity to open a cold weather shelter, as there are many empty buildings, including offices. A property man was on the radio stating he could help to organise such an initiative, so let us do so. All that is needed is basic equipment, including showers, mattresses, coffee and soup. If such rudimentary facilities were available, people sleeping in the open could obtain shelter and avoid freezing to death. Unfortunately, people regularly die of hypothermia in this country. Homeless people should be provided with the necessary information. In addition, members of the public could be provided with a helpline number via street placards to assist the homeless. It would be a credit to the Oireachtas if we could insist that the Government initiate such a scheme.

  A lot of the problems with charities concern bureaucracy. It is a much more complicated situation than people imagine. I cannot help noticing that when anybody opens their gob to criticise the Government, there is a little toxic leak against them. I remember that happened when the Technical Group in the Dáil produced material about various eminent people getting points off their licences for drunk driving.

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke Does the Senator have a question for the Leader?

Senator David Norris: Information on David P.B. Norris Zoom on David P.B. Norris Yes. Can we have some ethical standards in public life? The Government should not use this technique of leaking damaging material about people every time they criticise the Government. People have a right to criticise it. I doubt if the Taoiseach would be delighted if he was put in charge of half a dozen hospitals, as one person was, and from one day to the next their salary was cut in half. I would not enjoy it, but maybe other people would.   I would like to comment further on an issue I raised last week, namely, the apostolic exhortation of Pope Francis.

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke The Senator is already over time.

Senator David Norris: Information on David P.B. Norris Zoom on David P.B. Norris There is such a vision in this that I would certainly have changed my position. If anybody wants to propose consideration of the re-opening of the embassy in the Vatican I will heartily support it because I think there is so much good radiating from this man and, to be selfish, so many diplomatic contexts that would be very useful for this country. I believe it would be a very good signal of renewal.

Senator Terry Leyden: Information on Terry Leyden Zoom on Terry Leyden The Senator might join it.

Senator David Norris: Information on David P.B. Norris Zoom on David P.B. Norris I will not. I am in the one true church.

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke Could we have silence for Senator D'Arcy please?

Senator Jim D'Arcy: Information on Jim D'Arcy Zoom on Jim D'Arcy Gach trí bliana, foilsíonn an OECD torthaí a léiríonn cumas litearthachta déagóirí atá cúig bliana déag d'aois thar 65 tíortha ar fud an domhain. It collates the data and produces league tables known as PISA, which results have in recent years indicated a decline among Irish 15 years olds in Irish, mathematics and science results. However, the new table indicates we are back where we were. Some teachers said that the previous results were rogue results. Regardless, it is good to see that the performance of Irish 15 year olds in maths, reading and science is significantly above average in European terms and across 65 countries. There must be a recognition and appreciation of the great work being done in teaching and learning in our schools.

  Ireland now ranks in 9th position in respect of science, which is a jump of five places and is indicative of the effect of the new syllabi at primary and post-primary levels. The 50th anniversary of the Young Scientists Exhibition founded by Dr. Tony Scott and Fr. Tom Burke is approaching. I propose that we invite Dr. Tony Scott to appear before the Seanad to address us.

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke That is a matter for the Committee on Procedure and Privileges. The Senator should take it up with the leader of his group.

Senator Terry Leyden: Information on Terry Leyden Zoom on Terry Leyden I welcome to the Distinguished Visitors Gallery Fr. Padraig Devine, from Frenchpark in County Roscommon, who is a member of the SMA Fathers who are currently serving in Kenya but started out in Tanzania. Fr. Devine recently established the Shalom Centre for Conflict Resolution and Reconciliation, SCCRR, of which he is executive chairman. The purpose of the organisation is to bring about peace and harmony in that region. Members will be aware that "Shalom" means "Peace".

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke We need him here.

Senator Terry Leyden: Information on Terry Leyden Zoom on Terry Leyden There is no doubt that he would be a great asset.

  On 31 October 2013 Fr. Devine was awarded the prestigious award by the Caring Institute International Award and was inducted into the caring hall of fame. The 2012 recipient was His Holiness the Dalai Lama and previous recipients include Colin Powell and Jimmy Carter. I am delighted to welcome him to the Seanad and commend him on his work in Kenya, Tanzania and beyond. Fr. Devine has served with the Society for African Missions for the past 25 years and recently established the Shalom Centre for Conflict Resolution and Reconciliation, which seeks to assist in the reconciliation of the tribes and elders in the border of Tanzania and Nairobi. I congratulate him on receipt of the award, which is very prestigious for an Irish man. To my mind, it is verging on the Nobel peace prize. I wish him well and continued success. I hope that we will be working with him in Ireland in the context of the establishment here of a Shalom centre. I wish him continued health and success in the work he is undertaking.  At his induction into the hall of fame, he stated it was on behalf of all the missionaries and peace lovers in Africa and that he represented them at that award. It was not just for himself, but for all those unheralded nuns, sisters, brothers and priests who work so tirelessly in Africa and beyond on behalf of this country and the Catholic Church.

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke I am sure all Members would like to be associated with Senator Leyden's remarks. I call Senator Kelly.

Senator John Kelly: Information on John Kelly Zoom on John Kelly That was good timing, as I also wish to congratulate Fr. Padraig Devine, who I have known for many years. Indeed, he attended Maynooth College with my wife and she has good memories of their time there. As Senator Leyden pointed out, this is an absolutely magnificent achievement for anyone but for an ordinary Padraig Devine from the west of Ireland it is a huge achievement. I really wish to congratulate him and to let him know that everyone in County Roscommon is very proud of him in this regard. To put it all in context, this award came about 25 years ago, when it was inspired by Mother Teresa.

  Second, I wish to raise another issue that has been a bugbear of mine for a number of years, namely, the cost of insurance for young learner drivers. I have made the point many times that particularly at present, families simply cannot afford to pay €1,500 or €2,000 each year just to put their 17 or 18 year olds onto their car insurance. Moreover, in most cases those children are away in college and are only at home for two days of the week. Consequently, I ask the Leader to take some advice from Members of this House and bring to the attention of the Minister for Transport, Tourism and Sport the possibility of putting in place some other scheme by insurance companies whereby insurance is made available on a two day week basis to children aged 18 or 19 who are learning how to drive. I would appreciate what can be done by the Leader in this regard.

Senator Sean D. Barrett: Information on Sean D. Barrett Zoom on Sean D. Barrett I ask the Leader to pass on the sympathies of the House to the Lord Provost of Glasgow, Sadie Docherty, and to the First Minister of Scotland, Alex Salmond, on the tragic death of eight people in the recent Glasgow helicopter disaster. The very name of the Lord Provost, Sadie Docherty, indicates the strong connections between Ireland, including the Cathaoirleach's own county of Mayo, as well as counties Sligo and Donegal, and that city and Members feel for their loss at this time.

  I also note that last Friday the Competition Authority published a report on the need for more competition in the ports of Ireland. In his response, the Minister, Deputy Varadkar, stated he hoped to have action early in this regard. He also stated that when he was in opposition, he was critical of how reports commissioned by the Government of the day were published and then left on the shelf. He went on to state he is determined to ensure this does not happen under the current Government. I ask the Leader to have the issues in the Competition Authority's report on seaports in Ireland as the subject of debate in this House.

Senator Cáit Keane: Information on Cáit Keane Zoom on Cáit Keane I wholeheartedly support Senator Norris in the call he has just made and it is important to have signs directing traffic here and there. What is more important then directing a homeless person? I note Alice Leahy was in the Gallery earlier and I congratulate her on the work she has done. As for Fr. Padraig Devine, I support the comments of Senators Leyden and Kelly. I noted with interest Senator Kelly's comment that he was in Maynooth with his wife. I thought to myself that the Catholic Church had women priests I did not know about.

A Senator: The Senator stated that his wife was in Maynooth with the priest, not the other way around.

Senator Cáit Keane: Information on Cáit Keane Zoom on Cáit Keane Yes, but I wish to congratulate the Rev. Pat Storey, who is the first woman bishop in the Anglican Church. The doors were always open in the Anglican Church and perhaps this also will be the case and we are working on that.

  Today is both international day of persons with disabilities and national grieving day. Members have debated the issues of suicide, grieving and everything associated with it in this Chamber but in the olden days, grieving and everything else was centred to a great extent on the church. Regardless of whether this was good or bad, as many people no longer go to church and that sense of community has been lost, I seek a debate on the community development and support in the community, not just organising but in order that things happen, that is, there is a daily drop-in centre in each community where people can simply drop in for a cup of coffee.  Men's Sheds is great for men and different things are organised. Community halls are there and should be used. I raise this issue on national grieving day, in particular as there were 100 suicides in the first three months of this year, so something is needed.

Senator Trevor Ó Clochartaigh: Information on Trevor Ó Clochartaigh Zoom on Trevor Ó Clochartaigh Tá sé thar a bheith tábhachtach go ndéanfadh muid plé ar an gconspóid mhór atá ann maidir leis na híocaíochtaí i gcúrsaí carthanachta. Tá an chonspóid seo ag cur an-imní ar dhaoine ar fud an phobail. Tá sé tábhachtach go dtiocfadh an teachtaireacht amach gur chóir do dhaoine fanacht ag tacú leis na carthanachtaí.

  The debate around top-up payments for people working in organisations funded by charitable means is of huge concern to the public. According to some reports, people have lost confidence and it is important we play a role in restoring confidence in the charitable sector. It is important people get the message that it is important to support charities, in particular at this time of year.

  We need a debate on this area but it is quite hypocritical of the Government and certain Ministers to criticise paying top-ups when they have endorsed them in the running of Government. In late 2011, the Department of Health, under the Minister, Deputy Reilly, sought and secured approval from the Department of Public Expenditure and Reform, under the Minister, Deputy Howlin, to pay a salary of up to €195,000 to an acting chief executive in a Dublin hospital who was moving to take up the running of another group of hospitals operating under the HSE. It is quite hypocritical to lambaste the chief executives of these organisations.

  We need a debate on the payment of top-ups and to review those payments made under the auspices of this Government and those in the charitable sector, so that people's confidence can be restored. It something we have may have taken for granted that there was a culture of this type of nudge nudge, wink wink payment going on under previous Administrations. We were told there would be change with this Administration but plus ça change, plus c'est la même chose, as the French would say. It seems to be going on and it is not acceptable. We certainly need to get to the root of it.

Senator Denis Landy: Information on Denis Landy Zoom on Denis Landy On 24 October 2012, Saorview went live supplying a free television service to 600,000 customers. While transmission was free, it cost people more than €100 per television set to upgrade to ensure they got the service. Lo and behold, 13 months later, the same people are being told they have to rescan and retune their televisions and that the system will not be operational after February 2014. I have been contacted by many elderly people living in rural areas who do not know how to rescan or retune a television. I have been in contact with Saorview, which is a semi-State company, on this issue and have been informed it is doing everything it can to help people.

  Will the Leader ask the Minister for Communications, Energy and Natural Resources to request Saorview to set up a national briefing day for rural organisations such as community alert, neighbourhood watch, the Irish Farmers Association, residents' associations, the Irish Creamery Milk Suppliers Association, the Irish Countrywomen's Association and so on, so that these people can impart the necessary knowledge to their communities on this very vital changeover? It was supposed to happen only once in October 2012 but it is happening again. If it is not done successfully, thousands of television screens belonging to elderly people living on their own will go blank in February 2014, which unacceptable. Will the Leader involve himself in this?

Senator Marc MacSharry: Information on Marc MacSharry Zoom on Marc MacSharry Will the Leader raise with the Minister for Health a case which concluded in the courts today of a deceased woman, Dhara Kivlehan, from north Leitrim? The HSE consistently refused to hold an inquest into the death of that woman. Her husband, Michael, his parents and his son have been denied the right to an inquest. People may be aware that this case was a very similar to that of Savita Halappanavar. Having become very ill a number of days after giving birth, Ms Kivlehan was transferred to the Royal Victoria Hospital in Belfast where she later died.  There is an inquest in Belfast, as it happens, but it is fair to say the HSE has obstructed the process by prohibiting or refusing to allow people to travel to participate in that inquest. Even as we heard, the surviving husband, Michael Kevin Kivlehan, who is a personal friend of mine, although I have not raised the case before given the matter was before the courts, but now that it is-----

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke Has the Senator a question for the Leader?

Senator Marc MacSharry: Information on Marc MacSharry Zoom on Marc MacSharry Now that it is not, I echo the call of Mr. Kivlehan today. Surely that deceased woman, who did not have the benefit of the high profile case we had for Savita Halappanavar, is entitled to an inquest. I ask Senator Cummins to use the good offices of the Leader of Seanad Éireann to impress upon the Minister the need to have that inquest carried out in memory of this woman.

  Finally, I ask that we would also debate the issue of co-funding in the House. While I appreciate the Minister was in the House recently, I believe he must come back in the course of the next week. We gather there will not be a fully funded Pillar 2 budget in this country under the Common Agricultural Policy because the Minister negotiated the amount of co-funding eligible back to 25%. This has huge implications for the north west, which does not have the benefit of the main body of the lobby of the IFA throughout the country, and it could cost us up to €170 million a year in the context of the disadvantaged areas payment and the agri-environment options scheme, AEOS. This is a very serious concern, and it is one I believe the leadership of the IFA is ignoring. It is being accused, in effect, by its own membership in the north west of thinking more about its Fine Gael candidacy for the European Parliament than about the representation of small farmers in the north west of the country.

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke Has Senator MacSharry a question for the Leader?

Senator Marc MacSharry: Information on Marc MacSharry Zoom on Marc MacSharry Frankly, this is an issue that is of huge importance for the small farmers in the north west, who remain the engine room in terms of the production of weanlings, which is such a huge part of the beef export market.

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke The Senator is way over time.

Senator Marc MacSharry: Information on Marc MacSharry Zoom on Marc MacSharry If we do not get adequate funding, this will put in jeopardy our beef export business into the future.

  Very finally-----

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke The Senator is way over time.

Senator Marc MacSharry: Information on Marc MacSharry Zoom on Marc MacSharry -----I second the amendment proposed by our leader, Senator Darragh O'Brien.

Senator Michael Mullins: Information on Michael Mullins Zoom on Michael Mullins I call for a debate in the House on the non-sanctioned payments to senior managers in section 38 agencies. Much has been written in the media in recent weeks and the level of payments made to some people is outrageous. The public are rightly outraged but I am more concerned at the impact this is having on legitimate charities, 95% of which have not been making top-up payments to any of their executives. Many charities rely on the Christmas period for much of their income to keep services going for the coming year. I share the desire of Senator Mac Conghail to have the charities regulator appointed as a matter of urgency and to have the Charities Act implemented.

  I could not let the opportunity go without complimenting the Taoiseach and the Minister for Agriculture, Food and the Marine on the very welcome re-opening of the beef export market to Japan. This is the first time since 2001 that this market has been open and we are one of a select number of countries that are allowed to export beef to Japan. In the short term, it is worth €12 million to €15 million, with very significant potential for expansion. As we all know, the agrifood sector is a significant driver of economic growth and employment. I am sure Senator MacSharry is scaremongering in regard to Pillar 2.

Senator Darragh O'Brien: Information on Darragh O'Brien Zoom on Darragh O'Brien Let us have an answer. He is just raising a point.

Senator Michael Mullins: Information on Michael Mullins Zoom on Michael Mullins I have no doubt the Minister, Deputy Coveney, will deliver on this in the coming weeks. I look forward to a very positive exchange with the Minister in regard to Pillar 2.

Senator Feargal Quinn: Information on Feargal Quinn Zoom on Feargal Quinn I support Senator David Norris when he talks about the great work Alice Leahy is doing in TRUST, particularly her effort to get the cold weather hostel off the ground. If there is anything the Leader can do to draw attention to this, it is an issue worthy of support, particularly at this time. Senator Norris has spoken about it very well.

  I would like to draw attention to what is happening in Denmark with regard to payments. Denmark has legislated for digital post boxes and from November of next year no more cheques will be written by the State and all communications by the State will be made by digital and electronic means.  The reason I mention this is that it will yield a saving of €270 million per annum. If that is happening in Denmark, we can do the same. However, I have discovered that we are planning to do it here. It was announced in the national payments plan that it would start from 19 September next. We will move even faster than the Danes. It will apply to business. From next September the Government will not pay or communicate with businesses except by electronic means. The savings are huge, but the businesses must prepare for it. It means one will never again hear the Government say, "The cheque is in the post", because there will not be any cheques after that date. It is interesting that Irish people are among the biggest users of cheques, which are now regarded as a very outdated and expensive method of payment.

  I raise this matter now because we must do something about it, not wait until the last minute. We have not done a very good job of proclaiming our intent to do this. At present, businesses wait 74 days to be paid. If there are electronic payments, that figure will be reduced to 44 days, and Members will be aware that the Government has plans to ensure that everything should be paid within 15 days. This issue is worthy of debate and attention. We must ensure that businesses are prepared for it, but the vast majority of businesses are not aware of it. It is a matter on which I support the Government. The Government should be supported, but we must add our voice to help it along that course.

Senator Colm Burke: Information on Colm Burke Zoom on Colm Burke I join my colleagues in raising the issue of the number of agencies that are getting funding from the HSE. For the information of the House, 2,680 organisations are in receipt of funding totalling €3.27 billion per annum. It is 25% of the health budget so it is important that we have a debate on it. I welcome the decision by Jonathan Irwin to disclose the pay of senior staff. Every other organisation should do likewise, so there is full transparency.

  My colleague, Senator Mullins, referred to section 38 organisations. The big problem is not section 38 organisations but section 39 organisations. They are not subject to the same level of scrutiny as section 38 organisations as they are not fully funded by the HSE. I received a reply on this matter from the Department when I raised it on the Adjournment last week. It is only in the last four weeks, since I started to raise this issue in the health committee, that the Department has decided to write to the section 39 organisations to ask them to comply with the HSE guidelines on salaries. It is a little late to be doing that now as it should have been done far earlier, but I welcome the decision to write to section 39 organisations on this issue. There is a need for a full debate on this so people can be aware of the level of funding paid to all of these organisations from the health budget. I would welcome the Minister coming to the House for a full, detailed debate on both section 38 and section 39 organisations.

  Finally, I join my colleague, Senator Leyden, in congratulating Fr. Padraig Devine. A member of my family has been working for many years in Nairobi in Kenya and, having visited that country, I am very much aware of the difficult work involved and of the contribution the religious orders are making in such countries. I welcome him and congratulate him on the award he received.

Senator Paul Bradford: Information on Paul Bradford Zoom on Paul Bradford I support Senator Norris's remarks on the need for a cold weather shelter. I am sure every Member would support his request and I hope the Leader will try to pursue it. That the matter is before us for debate must cause us to reflect on the fact that while there is a positive and welcome degree of economic progress, there is still, to put it mildly, a subset of society that is living on almost unacceptable levels of reduced means. We must never forget those people.

  My question relates to the local government Bill. It passed Second Stage in the Dáil and Committee Stage is under way at present in the select committee. Has the Leader received any indication as to when the Bill will be brought before the Seanad? I accept that there is a degree of urgency due to the local elections being held next May but given the unique relationship between Members of this House and the members of local authorities, both town and county councils, we will have to reflect at substantial length on the Bill.  If we have to resume a little earlier in January or whatever, we need to give the debate time. I hope that the legislation will not be rushed through and finalised before Christmas and that the Leader will give a positive indication in this respect.

  I concur with the comments of Senators Mullen and Burke on the question of the top-up allowances and the arrangements under sections 38 and 39. A request has been made for the Minister for Health to appear before us but we must be realistic that this will not happen today. Hopefully, he will attend the House before Christmas to debate this issue. It was disturbing to listen to yesterday's interview with Mr. Peelo because he presented his version of events in a clear fashion. The HSE has disputed his intervention but somebody is presenting a false picture. Either these meetings took place and sanction was given or they did not and sanction was not given. Mr. Peelo's interview and the HSE and departmental response to it do not connect. Somebody is not telling the truth and we need to know the facts as soon as possible. The issue of top-up allowances must be tackled because the taxpayer needs clarity and value for money. While there are questions about this and a lack of transparency, there will be a vacuum, which needs to be filled.

Senator Martin Conway: Information on Martin Conway Zoom on Martin Conway Today is UN International Day of Persons with Disabilities and it is always good to have a day on which people can reflect on what has been achieved to date and what has yet to be achieved. Today's theme is breaking down barriers and opening doors. It is interesting that Ireland has not ratified the UN Convention on the Rights of Persons with Disabilities. Both parties have committed to this in the programme for Government. Will the Leader establish when it is expected we will ratify the UN convention, as this is a fundamental right of people with disabilities? I would have liked this to have happened during our Presidency of the EU. That was a golden opportunity to achieve this but, unfortunately, it did not happen. There may be a good reason for the delay and I would like a date for the ratification.

  I was delighted to be at Farmleigh House earlier for the official launch of an inspiring programme to encourage young people to become involved in sport. The project is financially supported by the Department of Justice and Equality and it is being run by the Cara APA Centre, which is associated with Tralee Institute of Technology. The Minister of State with responsibility for disabilities issues, Deputy Kathleen Lynch, launched the programme and I am delighted that Joanne Cantwell, a sports journalist, is lending her support by becoming a patron of this important and prestigious programme. It is good to have a day like this to highlight the issues affecting people with disabilities and to give us all an opportunity to reflect on how we can do better to strive to ensure an equal opportunity for every citizen in our society.

Senator Fidelma Healy Eames: Information on Fidelma Healy Eames Zoom on Fidelma Healy Eames Senator Quinn said we are faster than the Danes when it comes to digital payments. However, PISA results published earlier which compare 15 year olds across Europe show we are not yet faster than the Finns. I attended the launch of the report earlier. It is good that we have steadied the ship but there is worrying news. One in every five of our 15 year olds is underperforming in maths and is below the cut-off point for having the ability to do maths for future living. This is serious because this means it would be beyond them to work out what a 20% discount means when buying a product in a shop. Will the Leader invite the Minister for Education and Skills to the House for a debate on this issue? Earlier intervention is needed in primary school. It is too late for many of our children to wait until second level to participate in Project Maths because they have been turned off maths at that stage.   I would like to raise a second issue that relates to education. I welcome today's announcement by the Minister, Deputy Quinn, that an additional 400 special needs assistants will be recruited at a cost of €12 million. While this is good to see, an opportunity to make a policy change in this area has been missed. I suggest that we introduce the new role of teaching assistant. SNAs care for and look after the welfare of children with special educational needs. Having discussed this issue with parents, children and teachers, it strikes me that the learning of these children, as well as their care, needs to be supported. I would like a debate on this matter. I suggest that a role of this kind, in addition to the role of the SNA, should be introduced at primary and secondary levels. I have asked the Leader to raise two issues with the Minister for Education and Skills.

Senator Michael D'Arcy: Information on Michael D'Arcy Zoom on Michael D'Arcy I would like to raise the inaction of the HSE with the Leader of the House. This matter has come to the fore in recent weeks. Large amounts of money have been awarded against the HSE following high profile court cases. I would like to echo the Judiciary's criticism of the manner in which the HSE inflicts further pain, distress and anguish on families by not accepting liability until the very last moment. It is absolutely disgraceful that a large institution is able to have such an impact on an individual. I would like the Leader to take this request for a debate very seriously. Perhaps an interdepartmental debate is needed because in addition to the Department of Health, the Departments of Justice and Equality and Finance and the State Claims Agency might have a role in this regard. Such a debate should take place sooner rather than later. We seem to have learned nothing about what happens when the State neglects small groups of people, for example, in the cases of the former residents of the Magdalen laundries and those who are affected by narcolepsy. The manner in which the HSE holds the line and thereby inflicts further distress on individuals and families is not acceptable. I would like us to address it in this Chamber.

Senator Paul Coghlan: Information on Paul Coghlan Zoom on Paul Coghlan I welcome the good news that the Japanese market is being reopened to Irish beef. This trade is worth a great deal of money.

  The report of the Smithwick tribunal was delivered to the acting Clerk of the Dáil on Friday. Some preliminary checks have had to be made with the Director of Public Prosecutions to ensure there is no interference with anything that is before the courts. Perhaps the Leader will make a brief statement to the House on when he believes the report will be laid before us. Is it imminent or is it likely that there will be a delay?

Senator Mary Moran: Information on Mary Moran Zoom on Mary Moran I would like to acknowledge that today marks the international day of persons with disabilities. The these of this year's worldwide event is "break barriers and open doors for an inclusive society for all". The UN estimates that over 1 billion people around the world - approximately 15% of the world's population - live with some form of disability. The international day of persons with disabilities has been in existence since 1992. It gives us an opportunity to highlight the importance of developing and working together to create an inclusive society for all people. I would like to pay tribute to the members of Inclusion Ireland's sub-committee on advocacy, which held an excellent briefly in Buswells Hotel earlier this afternoon. They spoke about advocacy rights and the rights of people with disabilities. They outlined what we can do to help improve the situation. I agree with the programme for Government that the UN Convention on the Rights of Persons with Disabilities needs to be ratified. I call on the Leader to try to find out when that will happen. There have been many moves recently to improve the lives of people with disabilities. It is important to ensure people become self-advocates.

Senator Darragh O'Brien: Information on Darragh O'Brien Zoom on Darragh O'Brien The respite care grant cut was very helpful in that context.

(Interruptions).

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke Senator Moran, without interruption.

Senator Mary Moran: Information on Mary Moran Zoom on Mary Moran I wish to bring to the attention of the House a study done by such a self-advocate, a wheelchair user in my own home town of Dundalk. He compiled a comprehensive report on accessibility in the town. It showed how we can work with the local authority to improve accessibility in the town. More such reports from self-advocates would be useful.

  I commend the Minister for Education and Skills for announcing today the provision of 400 extra SNAs. He is honouring the commitment he made earlier in the year to increase the number of SNAs. I refer to the PISA report which shows Ireland has regained the ground lost in 2009 and that our 15 year olds are now among the best in reading and above average in mathematics and science in OECD countries.

Senator Maurice Cummins: Information on Maurice Cummins Zoom on Maurice Cummins Senator Darragh O'Brien asked about the health service plan. The Minister for Health, Deputy Reilly, received the draft service plan from the HSE on Monday, 25 November. The Minister has 21 days in which to review the plan and to either approve it or to issue a direction to amend the plan. The Minister is reviewing the service plan which he can approve or seek to be amended by 16 December. In reply to Senator O'Brien, I am afraid we will not be in a position to discuss the service plan in the House, based on that time schedule.

  Senator Bacik welcomed the measures for bankruptcy reform and she called for an urgent debate on white collar crime. She asked that the authority for the regulation of charities be established as soon as possible. This matter has been raised by a number of Senators today. The Minister is committed to the establishment of a charities regulatory authority under the terms of the 2009 Act. Subject to the necessary preparatory work being completed, it is intended that the authority will be formally established in mid-2014. In advancing this process, the Minister for Justice and Equality, Deputy Shatter, intends in the near future to invite expressions of interest from suitably qualified and experienced persons who wish to be considered for membership of this authority. It is moving on but it is taking longer than the Minister initially anticipated but it will be in place next year. Senator Mac Conghail also raised the issue of the need for the maintenance of trust and confidence in the charities and not-for-profit sector.

  Senator Norris and other Senators have spoken about the need for a cold weather shelter. I will bring the matter to the attention of the Minister of State, Deputy Jan O'Sullivan. I hope the Minister of State will come to the House to debate the issue of homelessness.

  Senators D'Arcy, Healy Eames and Moran and others, asked for a debate on the PISA report which covers 65 nations. The Irish situation has improved significantly since the previous report. I will bring the matter about Dr. Scott which was raised by Senator D'Arcy to the attention of the Committee on Procedure and Privileges.

  Senators Leyden, Keane and others, as well as all Members, wish to congratulate Father Pádraig from the SMA missions on his award. Senator Kelly raised the matter of insurance for young drivers. I am sure the Minister would welcome any advice and suggestions on that matter.

  Senator Barrett extended sympathies to the Scottish First Minister on the dreadful helicopter accident in Glasgow at the weekend.  I am sure that we would all like to extend our sympathies to the families bereaved by that dreadful accident.

  I will arrange a debate with the Minister regarding the report on sea ports. It needs to be debated and I am sure that the Minister would be willing to attend.

  Senator Keane congratulated the Rev. Pat Storey, the first woman bishop in the Anglican church, and highlighted the need for more drop-in centres. We can address that matter with the Minister of State, Deputy Jan O'Sullivan, when she attends the House.

  Senators Ó Clochartaigh, Mullins and Burke referred to top-up payments in sections 38 and 39 agencies. A considerable number of the section 38 agencies have been found to be in breach of Government policy. The Minister met the director general of the HSE yesterday to receive an update on unsanctioned payments to management in organisations receiving funding under section 38 of the Health Act 2004. The Minister has requested urgent action to ensure that every agency is fully compliant with Government pay policy. A team of senior HSE managers is following up with individual agencies. The HSE will take whatever action is necessary to deliver full compliance and ensure that any governance deficits identified are comprehensively and immediately rectified. Meetings have been arranged with every agency concerned. Arising from this process, those found not to be compliant will be called in by the director general to meet him before Christmas. Such meetings will commence next week.

  Senator Landy discussed Saorview and called for a briefing for communities that will be affected. I will bring the matter to the attention of the Minister for Communications, Energy and Natural Resources, Deputy Rabbitte. I am sure that the Senator will do likewise.

  Senator MacSharry referred to the need for an inquest in respect of a deceased lady. I suggest that this matter would be best dealt with through an Adjournment matter but I will bring it to the attention of-----

Senator Marc MacSharry: Information on Marc MacSharry Zoom on Marc MacSharry With respect, Savita Halappanavar did not need too many Adjournments.

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke The Leader, without interruption.

Senator Maurice Cummins: Information on Maurice Cummins Zoom on Maurice Cummins Many members of the Fine Gael Parliamentary Party have consistently raised the issue of co-funding under Pillar 2 with the Minister. He is working hard to address it. The situation may not be as bad as Senator MacSharry has painted. Perhaps we might even have good news.

Senator Marc MacSharry: Information on Marc MacSharry Zoom on Marc MacSharry We will all debate it together.

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke The Leader, without interruption.

Senator Maurice Cummins: Information on Maurice Cummins Zoom on Maurice Cummins I am sure that the Senator will welcome it if it happens.

Senator Marc MacSharry: Information on Marc MacSharry Zoom on Marc MacSharry Indeed I will.

Senator Maurice Cummins: Information on Maurice Cummins Zoom on Maurice Cummins Senators Mullins and Paul Coghlan and others welcomed the re-opening of the beef market in Japan. It will prove to have great potential for our country, including the farmers mentioned by Senator MacSharry. We are hopeful that markets to China will be re-opened in early course. That would be of benefit to our food sector.

  Senator Quinn referred to digital post boxes and the payments by electronic means to businesses in Denmark. We intend to roll out the same. The situation should improve. The amount of time that it takes Government agencies to pay suppliers is a significant improvement on what it was even six months ago. The majority of payments are made within 15 days.

  Senator Burke called for full transparency in respect of section 38 organisations and the CEOs of charities, some of whom are paid more than €200,000. There should be transparency.   Senator Bradford referred to the local government Bill and I understand that we will be taking Second Stage of that legislation on 13 December. That is the date set down at the moment, unless it is further delayed in the other House. We will allow ample time for that debate. The Minister hopes to have the Bill finished by Christmas but I am in the hands of the House as to how we should deal with that matter. At this point, Second Stage is tentatively set for 13 December.

  Senators Conway and Moran referred to the UN International Day of People with Disabilities and inquired when Ireland will ratify the relevant UN convention. I will seek an answer on that matter and revert to the Senators in due course.

  Senator Healy Eames referred to the need for early intervention in Project Maths. She also welcomed the Cabinet approval today for the recruitment of 390 extra special needs assistants. I will try to arrange for a debate with the Minister for Education and Skills, Deputy Quinn, on the issues that were raised by a number of Senators.

  Senator Paul Coghlan referred to the report of the Smithwick tribunal, publication of which, I understand, is imminent. When we have the report, I am sure we will have a debate on it.

  Senator Jim D'Arcy mentioned the HSE not accepting liability in a number of cases where it was clearly culpable and I share his concerns in that regard. Hardship has been caused for so many families, some of whom we heard about only last week. They have suffered great hardship through the actions of the HSE. We all hope the executive would own up and accept liability far earlier than has been the case in the instances cited by Senator D'Arcy.

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke Senator Darragh O'Brien has proposed an amendment to the Order of Business: "That an hour's debate with the Minister for Health on the HSE service plan and the figure for savings be taken today." Is the amendment being pressed?

Senator Darragh O'Brien: Information on Darragh O'Brien Zoom on Darragh O'Brien Yes.

Amendment put:

The Seanad divided: Tá, 20; Níl, 30.

Níl
Information on Sean D. Barrett   Zoom on Sean D. Barrett   Barrett, Sean D. Information on Ivana Bacik   Zoom on Ivana Bacik   Bacik, Ivana.
Information on Thomas Byrne   Zoom on Thomas Byrne   Byrne, Thomas. Information on Terry Brennan   Zoom on Terry Brennan   Brennan, Terry.
Information on John Crown   Zoom on John Crown   Crown, John. Information on Colm Burke   Zoom on Colm Burke   Burke, Colm.
Information on David Cullinane   Zoom on David Cullinane   Cullinane, David. Information on Deirdre Clune   Zoom on Deirdre Clune   Clune, Deirdre.
Information on James Heffernan   Zoom on James Heffernan   Heffernan, James. Information on Eamonn Coghlan   Zoom on Eamonn Coghlan   Coghlan, Eamonn.
Information on Terry Leyden   Zoom on Terry Leyden   Leyden, Terry. Information on Paul Coghlan   Zoom on Paul Coghlan   Coghlan, Paul.
Information on Marc MacSharry   Zoom on Marc MacSharry   MacSharry, Marc. Information on Michael Comiskey   Zoom on Michael Comiskey   Comiskey, Michael.
Information on Paschal Mooney   Zoom on Paschal Mooney   Mooney, Paschal. Information on Martin Conway   Zoom on Martin Conway   Conway, Martin.
Information on Rónán Mullen   Zoom on Rónán Mullen   Mullen, Rónán. Information on Maurice Cummins   Zoom on Maurice Cummins   Cummins, Maurice.
Information on David P.B. Norris   Zoom on David P.B. Norris   Norris, David. Information on Jim D'Arcy   Zoom on Jim D'Arcy   D'Arcy, Jim.
Information on Trevor Ó Clochartaigh   Zoom on Trevor Ó Clochartaigh   Ó Clochartaigh, Trevor. Information on Michael D'Arcy   Zoom on Michael D'Arcy   D'Arcy, Michael.
Information on Brian Ó Domhnaill   Zoom on Brian Ó Domhnaill   Ó Domhnaill, Brian. Information on John Gilroy   Zoom on John Gilroy   Gilroy, John.
Information on Labhrás Ó Murchú   Zoom on Labhrás Ó Murchú   Ó Murchú, Labhrás. Information on Aideen Hayden   Zoom on Aideen Hayden   Hayden, Aideen.
Information on Darragh O'Brien   Zoom on Darragh O'Brien   O'Brien, Darragh. Information on Imelda Henry   Zoom on Imelda Henry   Henry, Imelda.
Information on Ned O'Sullivan   Zoom on Ned O'Sullivan   O'Sullivan, Ned. Information on Lorraine Higgins   Zoom on Lorraine Higgins   Higgins, Lorraine.
Information on Averil Power   Zoom on Averil Power   Power, Averil. Information on Cáit Keane   Zoom on Cáit Keane   Keane, Cáit.
Information on Feargal Quinn   Zoom on Feargal Quinn   Quinn, Feargal. Information on Denis Landy   Zoom on Denis Landy   Landy, Denis.
Information on Kathryn Reilly   Zoom on Kathryn Reilly   Reilly, Kathryn. Information on Fiach Mac Conghail   Zoom on Fiach Mac Conghail   Mac Conghail, Fiach.
Information on Jim Walsh   Zoom on Jim Walsh   Walsh, Jim. Information on Marie Moloney   Zoom on Marie Moloney   Moloney, Marie.
Information on Diarmuid Wilson   Zoom on Diarmuid Wilson   Wilson, Diarmuid. Information on Mary Moran   Zoom on Mary Moran   Moran, Mary.
  Information on Tony Mulcahy   Zoom on Tony Mulcahy   Mulcahy, Tony.
  Information on Michael Mullins   Zoom on Michael Mullins   Mullins, Michael.
  Information on Hildegarde Naughton   Zoom on Hildegarde Naughton   Naughton, Hildegarde.
  Information on Catherine Noone   Zoom on Catherine Noone   Noone, Catherine.
  Information on Marie-Louise O'Donnell   Zoom on Marie-Louise O'Donnell   O'Donnell, Marie-Louise.
  Information on Susan O'Keeffe   Zoom on Susan O'Keeffe   O'Keeffe, Susan.
  Information on Pat O'Neill   Zoom on Pat O'Neill   O'Neill, Pat.
  Information on Jillian van Turnhout   Zoom on Jillian van Turnhout   van Turnhout, Jillian.
  Information on John Whelan   Zoom on John Whelan   Whelan, John.
  Information on Katherine Zappone   Zoom on Katherine Zappone   Zappone, Katherine.


Tellers: Tá, Senators Ned O'Sullivan and Diarmuid Wilson; Níl, Senators Paul Coghlan and Aideen Hayden.

Amendment declared lost.

Question put: "That the Order of Business be agreed to."

The Seanad divided: Tá, 30; Níl, 20.

Níl
Information on Ivana Bacik   Zoom on Ivana Bacik   Bacik, Ivana. Information on Sean D. Barrett   Zoom on Sean D. Barrett   Barrett, Sean D.
Information on Terry Brennan   Zoom on Terry Brennan   Brennan, Terry. Information on Thomas Byrne   Zoom on Thomas Byrne   Byrne, Thomas.
Information on Colm Burke   Zoom on Colm Burke   Burke, Colm. Information on John Crown   Zoom on John Crown   Crown, John.
Information on Deirdre Clune   Zoom on Deirdre Clune   Clune, Deirdre. Information on David Cullinane   Zoom on David Cullinane   Cullinane, David.
Information on Eamonn Coghlan   Zoom on Eamonn Coghlan   Coghlan, Eamonn. Information on James Heffernan   Zoom on James Heffernan   Heffernan, James.
Information on Paul Coghlan   Zoom on Paul Coghlan   Coghlan, Paul. Information on Terry Leyden   Zoom on Terry Leyden   Leyden, Terry.
Information on Michael Comiskey   Zoom on Michael Comiskey   Comiskey, Michael. Information on Marc MacSharry   Zoom on Marc MacSharry   MacSharry, Marc.
Information on Martin Conway   Zoom on Martin Conway   Conway, Martin. Information on Paschal Mooney   Zoom on Paschal Mooney   Mooney, Paschal.
Information on Maurice Cummins   Zoom on Maurice Cummins   Cummins, Maurice. Information on Rónán Mullen   Zoom on Rónán Mullen   Mullen, Rónán.
Information on Jim D'Arcy   Zoom on Jim D'Arcy   D'Arcy, Jim. Information on David P.B. Norris   Zoom on David P.B. Norris   Norris, David.
Information on Michael D'Arcy   Zoom on Michael D'Arcy   D'Arcy, Michael. Information on Trevor Ó Clochartaigh   Zoom on Trevor Ó Clochartaigh   Ó Clochartaigh, Trevor.
Information on John Gilroy   Zoom on John Gilroy   Gilroy, John. Information on Brian Ó Domhnaill   Zoom on Brian Ó Domhnaill   Ó Domhnaill, Brian.
Information on Aideen Hayden   Zoom on Aideen Hayden   Hayden, Aideen. Information on Labhrás Ó Murchú   Zoom on Labhrás Ó Murchú   Ó Murchú, Labhrás.
Information on Imelda Henry   Zoom on Imelda Henry   Henry, Imelda. Information on Darragh O'Brien   Zoom on Darragh O'Brien   O'Brien, Darragh.
Information on Lorraine Higgins   Zoom on Lorraine Higgins   Higgins, Lorraine. Information on Ned O'Sullivan   Zoom on Ned O'Sullivan   O'Sullivan, Ned.
Information on Cáit Keane   Zoom on Cáit Keane   Keane, Cáit. Information on Averil Power   Zoom on Averil Power   Power, Averil.
Information on Denis Landy   Zoom on Denis Landy   Landy, Denis. Information on Feargal Quinn   Zoom on Feargal Quinn   Quinn, Feargal.
Information on Fiach Mac Conghail   Zoom on Fiach Mac Conghail   Mac Conghail, Fiach. Information on Kathryn Reilly   Zoom on Kathryn Reilly   Reilly, Kathryn.
Information on Marie Moloney   Zoom on Marie Moloney   Moloney, Marie. Information on Jim Walsh   Zoom on Jim Walsh   Walsh, Jim.
Information on Mary Moran   Zoom on Mary Moran   Moran, Mary. Information on Diarmuid Wilson   Zoom on Diarmuid Wilson   Wilson, Diarmuid.
Information on Tony Mulcahy   Zoom on Tony Mulcahy   Mulcahy, Tony.  
Information on Michael Mullins   Zoom on Michael Mullins   Mullins, Michael.  
Information on Hildegarde Naughton   Zoom on Hildegarde Naughton   Naughton, Hildegarde.  
Information on Catherine Noone   Zoom on Catherine Noone   Noone, Catherine.  
Information on Marie-Louise O'Donnell   Zoom on Marie-Louise O'Donnell   O'Donnell, Marie-Louise.  
Information on Susan O'Keeffe   Zoom on Susan O'Keeffe   O'Keeffe, Susan.  
Information on Pat O'Neill   Zoom on Pat O'Neill   O'Neill, Pat.  
Information on Jillian van Turnhout   Zoom on Jillian van Turnhout   van Turnhout, Jillian.  
Information on John Whelan   Zoom on John Whelan   Whelan, John.  
Information on Katherine Zappone   Zoom on Katherine Zappone   Zappone, Katherine.  


Tellers: Tá, Senators Paul Coghlan and Aideen Hayden; Níl, Senators Ned O'Sullivan and Diarmuid Wilson.

Question declared carried.

  4 o’clock

Social Welfare and Pensions (No. 2) Bill 2013: Report and Final Stages

Acting Chairman (Senator Cáit Keane): Information on Cáit Keane Zoom on Cáit Keane I remind Senators that a Senator may speak only once on an amendment on Report Stage except the proposer of an amendment who may reply to the discussion on the amendment. Each amendment must be seconded.

Senator Paschal Mooney: Information on Paschal Mooney Zoom on Paschal Mooney I move amendment No. 1:

In page 9, between lines 19 and 20, to insert the following:

“9. The Principal Act is amended by inserting a new section 48A as follows:
“48A. A solvent firm shall not be allowed to close a defined benefit pension scheme except where the scheme has reached a minimum 90 per cent funding standard.”.”.

We tabled this amendment on Committee Stage. Again, we seek to impress upon the Minister the importance of ensuring that a solvent firm shall not be allowed to close a defined benefit pension scheme except where the scheme has reached a minimum 90% funding standard. Increasingly, solvent companies are refusing to put sufficient funds into their defined benefit pension schemes and, in many cases, they are walking away by paying out a reduced amount. The Waterford Crystal workers' case has been used continuously as an example, and we are still awaiting a High Court judgment on what will be the exact percentage. However, as I pointed out on Committee Stage, the UK precedent has been that they have paid 90%. On that basis, we believe it is vital that this amendment be accepted.

Acting Chairman (Senator Cáit Keane): Information on Cáit Keane Zoom on Cáit Keane Amendments Nos. 1 and 7 are being discussed together.

Senator Jim Walsh: Information on Jim Walsh Zoom on Jim Walsh We do not agree to that.

Acting Chairman (Senator Cáit Keane): Information on Cáit Keane Zoom on Cáit Keane Is the Senator seconding the amendment?

Senator Jim Walsh: Information on Jim Walsh Zoom on Jim Walsh I second the amendment. The amendment seeks to ensure that employers meet the commitments they have made to their employees. Where a person contributes to, and has an agreement with his or her employer for, a defined benefit scheme, the funding of that scheme should be proper and appropriate where the company has the financial capacity to do it. This amendment deals with that situation. It refers to a solvent firm and provides that it would not be allowed to close a defined benefit scheme until it has reached 90% funding. In other words, one would not have employers who have good financial capacity, are making a profit and giving a good dividend return to their shareholders deciding, perhaps in the interest of their balance sheets, not making their contributions to the defined benefit pension fund.

  I understand why the changes are being made in respect of companies that do not have the capacity and which, if that were forced on them, could become insolvent as companies, with a consequent loss of employment. That would not make sense. However, I appeal to the Minister to come down on the side of hard-pressed workers. It is the employees of this country, particularly in the private sector, who have taken a huge hit in this recession. Many have been made redundant, while many of those in employment have either experienced no increase in salary or reduced salaries, or have been obliged to take part-time work. As the representatives of the people, we must take a stand to ensure fairness.

  If the Minister disagrees with me, I ask her to point out where there is fairness in not obliging a company which is solvent and has the financial capacity to repair the deficit in the fund to at least bring it to 90%.  That does not prevent the scheme from being changed but if it is, at least the funding required from both the employees and the employer will be restored and repaired. That is a minimal step to support hard-pressed people who have been affected by the recession and who have secured little relief from the Government of which I was a member or this Government.

Senator David Norris: Information on David P.B. Norris Zoom on David P.B. Norris I second the amendment because it is not only solvent companies but also profitable companies that can use the current provisions to walk away from their obligations to pensioners. People are at a vulnerable time in their lives when they reach pension age. It is the one thing on which they always think they can rely. A classic example of the difficulties we are facing is the case of Waterford Wedgwood. The Waterford Crystal staff had a difficult time whereas the Wedgwood staff were looked after well because their company was based in the UK, even though it had merged with Waterford Crystal.

  I have raised the question of the Irish airlines superannuation scheme, IASS, which employees were obliged to join when they reached the age of 20 if they were recruited before that age, on behalf of a number of those employees. I have correspondence from one individual which states, "Following actuarial reviews, the percentage contributions paid into this scheme increased seven times during my 45 years of contributing commencing at a combined employer-employee contribution of 10.25% in the early 1960s and rising over time to 18.75% of basic salary." That should have resulted in a pension of €45,000 per annum when this man retired but he received a pension of €30,000, which is sustainable but it is not enormous when one considers the salaries of people in certain sectors of society and the top-ups and so on.

  The reason there is a difficulty in this regard is also interesting because over the years considerable reserves were built up in the IASS fund but they were diverted for different purposes such as funding financial incentives for early retirement, voluntary severance programmes and so on and this was combined with sponsoring employees accounting for the defined benefit scheme as a defined contribution scheme following the banking and financial crises in 2008. There was also the effect of financial markets and the banking crisis since 2008, the policies of central banks in Europe, minor changes to longevity tables and the use of annuity factor rates rather than corporate bond rates and so on, as they do in the UK to value pension liability. All this has had a negative effect on this fund. As late as 2008, the fund was in surplus but now it is not. This has been driven by these financial events.

  I hope to be present to support amendment No. 3 tabled by Senator Barrett because this gets into the nitty-gritty of these issues and specifies provisions that are vague in the Government's Bill. I support the amendment.

Minister for Social Protection (Deputy Joan Burton): Information on Joan Burton Zoom on Joan Burton The amendment broadly entails placing a debt on employers and we discussed this on Committee Stage. Defined benefit pension schemes are set up and maintained by employers on a voluntary basis. There has never been a statutory obligation on them under Irish law to contribute to their pension scheme, although scheme rules can place some level of obligation. However, a robust regulatory structure is now in place and that is set out in trust law and in the Pensions Acts.  As set out in previous discussions, many schemes are making great efforts to ensure their ongoing viability. The process is generally managed through dialogue between trustees, employers and members where efforts are made to reach agreement regarding the steps that must be taken to secure scheme viability, which may include a mix of measures such as increased employer-member contributions, longer working and amended benefits.

  It is important to recall that the biggest cause of the under-funding of Irish pension schemes has been, among other things, the change in population structure. Many of these schemes, including that referenced now by Senator Norris, were set up a long time ago when the expectation of the length of time that somebody would claim a pension subsequent to their retirement was a fraction of what it is now. The promises often made by good employers when such schemes were commenced and the structures were established were reflective of the life expectancy of the times and, therefore, what could be promised in good faith. The difficulty that has arisen is that longevity post-pension has changed beyond all recognition from what it once was. It has improved considerably, which is good news. The issue that now arises is how this enormously increased longevity is to be funded. These are funded pension schemes. Ultimately, all pension schemes are funded in one way or another.

  What we are trying to do by way of this Bill is ensure fairness for current pensioners. In this regard we are introducing a number of rules, including protection for people whose pension is lower than €12,000, a contribution by people who pensions are between €12,000 and €60,000 and a higher contribution by those whose pensions are greater than €60,000. However, the longevity issue remains a problem for many schemes. As stated by different contributors to this debate, the international financial markets have been in turmoil and in many instances returns have collapsed. In many cases, according to reports by the Pensions Regulator, some of the investments made were the wrong type of investment at the wrong time. In some cases there was over-investment in equities and bonds, which investment strategies did not work to the collective advantage of the scheme.

  As I stated, current and former pension members are collectively protected by a broad and detailed range of measures to safeguard their interests. The trustees of DB pension schemes have a fiduciary duty under trust law and the pensions Act to act in the best interests of all scheme members. There are further regulatory safeguards and oversights by the pensions board and scheme trustees have to apply to the pensions board before they can reduce benefits. Also, prior to trustees making an application to the board they must consult with the employer, the scheme member, pensioners and the authorised trade union representing scheme members. Trustees must also have undertaken a comprehensive review of the scheme with a view to its long term stability and sustainability. They must have requested from the employer contributions sufficient to ensure the long-term stability and sustainability of the scheme and to take legal advice on their powers and duties and on the obligations on employers to contribute to the scheme.

  I said previously that a great deal of consideration was given during the deliberative process to placing a statutory obligation on the employer to provide a base level of scheme funding which would secure a certain level of benefits in the event of a scheme wind-up or restructuring.  The advantage of placing a minimum obligation on the employer would be to reduce further the possible risk to the State. It would also protect the benefits of current and former scheme members. As has been said, it might also prevent the employers from walking away from defined benefit schemes. It would encourage them to ensure the scheme is well funded and managed. However, there are strong arguments against the introduction of an employer obligation. There is uncertainty about the overall impact of such a measure and the potential for it to have unintended consequences. One of the industry commentators, Deloitte, has argued that "if implemented, this "debt on employer" measure has the potential to effectively eradicate the provision of private DB pensions in Ireland". That is really the net point.

  I understand what the Senators are trying to achieve in this amendment - their general intention or objective is to conserve and secure, in so far as is possible, direct benefit schemes to provide for the current and retired members of such schemes - but I am concerned that this amendment carries the risk of having the direct opposite effect. There is a danger that in order to avoid debt - a debt on the employer is proposed in the Fianna Fáil resolution - some employers with underfunded schemes would wind up those schemes in advance of the completion of the legislative process, which would be complex and would take some time to put in place. Experience in the UK has shown that complex anti-avoidance structures with the requisite resources and expertise were required to prevent employers from restructuring in order to avoid their obligations. This complexity includes application to single employers and multi-group schemes. Particularly in the case of Ireland, employers with multinational parent companies might well walk away to avoid a further debt on the employer, perhaps in the context of the group finances in a country like Ireland. That is a serious and present risk.

  As I have said, most employers are good and honourable in relation to pensions. The problem is that the levels of promises given and the levels of funds entered into have not been sufficient to cope with the increased longevity of people claiming from the fund. The turmoil in the international financial markets happened after people made decisions on the basis of expensive actuarial and pension fund advice which often turned out to be wrong. I am reminded of the consequences for patients when doctors differ. Concerns have been expressed that debt on employer schemes may encourage imprudent investment behaviour by trustees as losses are seen to be backed by a kind of guarantee. In the current economic circumstances, in which many employers do not have the capacity to meet this extra cost, the imposition of additional costs on employers might have a counterproductive impact on the viability of businesses and the jobs of those employed. The imposition of a debt on the employer might threaten the company's financial stability. In some circumstances, depending on the particular circumstances of the case, it has the potential to render an employer insolvent. That, in turn, would have an impact on the company's creditors, who might take a view on the obligations imposed on the employer in the context of the debt on employer approach. That would affect company debt, investment and growth and the employer's ability to raise funds.

  I understand that the Senators have tabled this proposal because they wish to protect the interests of existing pensioners, in particular. The problem is that they are advocating the use of a double-edged sword. If this approach results in an excessive debt the employer is not in a position to meet, or to fund through the markets, its ultimate consequence might be the closure of the scheme, which is most certainly not what the Senators intend.  Moreover, in some cases, it could lead, as a consequence, to the potential insolvency of the employer. Employer guarantees have been considered by the Pensions Board a number of times and it has recommended against such a measure. Again, I note the Pensions Board is comprised of a wide variety of people from different backgrounds. It includes people from both employer and trade union organisations, as well as representatives from the pensions industry who are experts in this regard. Given the complexity and the number of unknowns regarding the impact and the current time constraints, I do not propose to accept the amendment and intend to proceed with the measure.

Senator Paschal Mooney: Information on Paschal Mooney Zoom on Paschal Mooney The Minister's response is interesting. While she spoke a great deal about debt and insolvency, I remind her that the wording of the amendment under discussion pertains to a solvent firm not being permitted "to close a defined benefit pension scheme except where the scheme has reached a minimum 90 per cent funding standard". In other words, this amendment pertains to solvent companies. I appreciate the Minister's remarks on the collapse in the pensions industry from 2008 but it has recovered. I do not suggest it has recovered to the position it had reached in 2008 or 2009 but it certainly has recovered significantly from the depths and lows reached in 2009 and 2010. As for the current controversy surrounding the ESB pension dispute, I have read a variety of different pension experts state the return on the bonds in which the ESB has invested is high, that is, they have been as high as 17% or 18% over the past two years. Moreover, they stated there was no indication that this would reduce significantly and that the ESB pension fund actually is solvent and is able to meet its obligations. This is what is under discussion, namely, a company that has entered into a promise with its employees from the outset that it would provide for a defined benefit pension at the end of their term of employment. All the amendment seeks is that it would not be allowed to close without at least 90% of it; not that it would go into debt in any way. I reiterate, that as a solvent company such a scheme would not be allowed to close unless it was prepared to pay up to 90% of the minimum pension that is required. That is the argument I am putting forward. I am not necessarily talking about companies going further into debt but about solvent companies that have a capacity to pay in this context.

Deputy Joan Burton: Information on Joan Burton Zoom on Joan Burton I will comment briefly by stating I understand the Senator's intentions. However, for a company in which a debt is placed on an employer, from a particular legal perspective this may have consequences for the employer in the sense there now is an enhanced obligation. This may well have consequences on the employer's overall balance sheet position, fund-raising capacity and debt capacity. On the other hand, the Government is trying to nurse schemes that are in difficulties back to a state of health. One measure that was launched successfully two years ago with the National Treasury Management Agency was a specific bond which has been subscribed to and which is based on a basket of securities offered by the NTMA and for those organisations that invested in this mechanism, it actually has resulted in highly attractive returns. I understand the ESB pension scheme was one scheme that took up that option.

  However - this is the important issue - I refer to the difference between the United Kingdom and the United States on the one hand and Ireland on the other. In the case of the United Kingdom, the United States or individual states therein, one is talking about much greater population concentrations than is the case in the Republic of Ireland. When one has such a concentration of population, the level of risk can be spread much more widely. In the case of companies in Ireland, many companies here with defined benefit pension schemes are relatively small in financial terms.  Certainly by international comparison, those small companies may be heavily reliant on borrowing for capital purposes. I suggest that what the Senator is proposing may well have consequences for them because, of course, pension liabilities when crystallised, which is the way modern accounting standards tend to approach pension liabilities as opposed to their being dealt with over a very long period of time, can quite rapidly result in very heavy burdens on relatively small sized companies and can have consequences for their financial viability. I am afraid that is a fact of life. We have to balance this against what the Senator is saying.

  Amendment put and declared lost.

Senator Jim Walsh: Information on Jim Walsh Zoom on Jim Walsh I move amendment No. 2:

In page 9, between lines 19 and 20, to insert the following:

9. Section 48 of the Principal Act is amended by inserting the following after subsection (1A):
“(1AA) No member of a defined benefit scheme shall be obliged to purchase annuities where he or she opts for an ARF or an AMRF or both.”.”.

President John F. Kennedy often used to quote George Bernard Shaw's saying: "Some people see things and say 'Why?' But I dream of things that never were and say 'Why not?'" The Minister is in real danger of falling into the former category. What we see here are the problems and why we cannot do something when, in fact, there are very good ways we could deal with this and there are many companies which we are now letting off the hook because of it.

  I am aware that in respect of this amendment the Minister will also get notes from the civil servants who probably already advised her. The real problem is that people working as civil servants, people in politics and people in the public service enjoy Rolls Royce pension schemes that one could not buy in the private sector - I said that from the first day I came in here and saw what the schemes were. There are many people who work extremely hard in the private sector and who are left high and dry at the end of their careers without having pensions. This Government's policy, in particular, has been so counterintuitive against the incentivisation of people to participate and to have pension schemes that I find it appalling.

  I would have thought this would have been recognised, particularly with a woman in this position, given very few women have pension schemes and those who have would have long gaps because of the period they are out of the workforce when having their children. This applies across the board. Women who follow careers in America spend an average of 11% of their work life outside of their employment category. We should ensure that those people are at least as well secured and looked after as those of us who are fortunate enough to work for the State.

  In this amendment, we ask that "No member of a defined benefit scheme shall be obliged to purchase annuities where he or she opts for an ARF or an AMRF or both." I see now that we should also have included the defined contribution schemes as well as the defined benefit schemes.

  I and other people who are directors or shareholders in a company can build up our pension schemes and we can invest in our own private pensions, or we can invest in an ARF or AMRF. However, many people, as employees, are not allowed to do that and they have to purchase annuities. On Committee Stage the Minister's note, which may also be what is drafted for her today, concerned the sovereign annuities. I checked on sovereign annuities and found that while the return on them might be calculated slightly differently, because they are based on bonds and the investment might be more secure, nonetheless, the central point I was making is still the same.

  Let us take a person on the cusp of retirement who has a serious illness and the prognosis might be that the person is not going to live for more than five or six years. That person is obliged to buy an annuity. Let us suppose there is €400,000 in the fund, and while I do not know precisely what current annuity rates are, they were 3% a few years ago and are probably 4% or 4.5% now. It means, in effect, that the most the person will get back from the capital sum is 20%.  Therefore, it makes no sense for them to put their money into an insurance scheme to give them an annuity when the profit and the majority of that scheme will accrue to the benefit of the insurance company.

  Alternatively, they could go into an approved retirement fund, ARF, or approved minimum retirement fund, AMRF. Presumably it would be an ARF because an AMRF would be a smaller amount of money - only up to €12,000. If they were to go into an ARF, at least the residue of the amount after their death would actually accrue to their wife or family. We have no made the choice in respect of the first amendment that the companies which are profitable, which is what this is about, are more important than the poor single individual in the pension scheme who is waiting on their pension and finds that the pension is closed. This individual will be seriously disadvantaged. The pension will be cut.

  Are we going to draft the legislation for the benefit of the insurance companies who pay the annuity, which is the way it works now? These companies obviously do it on an actuarial basis with a comfort zone built in for them. I have looked at some of these. It can take up to 25 or 30 years to get one's annuity back. This is just the capital sum without any return on the amount of money one is giving to people - they should be making a profit on it if they are in the business of managing funds. That is very unfair. People should have a choice. If they want to make that choice, they will have a guaranteed income for the rest of their lives however long they live. That is fine. They should have that choice. I am not trying to deprive them of it. The present situation is unsatisfactory.

  I am seeking the sensible and reasonable option of allowing people the choice of keeping their capital sum and putting it into an ARF which will be managed for them and where that pot of money will be their own and form part of their estate when they die unless this Government and this Labour Party Minister feels that the priorities of the insurance companies and their profits are superior to those of the individual pensioner. I do not share that view and I hope the Minister does not share it either.

Acting Chairman (Senator Cáit Keane): Information on Cáit Keane Zoom on Cáit Keane Who seconded the amendment?

Senator Paschal Mooney: Information on Paschal Mooney Zoom on Paschal Mooney I second the amendment.

Senator David Norris: Information on David P.B. Norris Zoom on David P.B. Norris I am not sure if I will bother voting on this amendment if it is called to a vote but I would like to make a few comments. I wish people would spell out what they mean by ARFs - whatever they are. I do not have the slightest idea what they are talking about.

  I compliment the Minister. She comes into this House and presents very clear and cogent arguments. She often does so. I have watched her over the past half hour or so and she has clearly been on top of the brief. She spoke ex tempore for some time. Yes, she received some notes but I do not think it is courteous to refer to this. It is perfectly appropriate for a Minister to receive notes and get advice on figures or whatever the matter is. I have seen virtually every Minister in every Government availing of this. I welcome the fact that we have the expertise in the House to support the Minister in the arguments she makes. I think she makes cogent arguments even though I do not agree with them.

  I will end on a further note of compliment which is completely inappropriate but I will make it anyway. I think this Minister is a very positive force and has a very difficult job. In particular, and she knows how I feel about this, she illustrates in her person the fact that Irish design is completely superb. I spoke to her a while ago about the very beautiful scarf she is wearing.  It is quite the best in the entire House. When I said it to her, I thought it came from Paris, Milan or Barcelona but it comes from Ireland.

Senator Jim Walsh: Information on Jim Walsh Zoom on Jim Walsh Relevance?

Senator David Norris: Information on David P.B. Norris Zoom on David P.B. Norris We can be proud of this and Ministers who, even if we do not agree with them, are so confident, buy and show Irish and encourage Irish produce. I do not agree with everything the Minister always says but it would be a very dull world if we did. I thank the civil servants who are here for the work they do.

Senator Paschal Mooney: Information on Paschal Mooney Zoom on Paschal Mooney Given the complexity of this argument, I am sure that the levity in which Senator Norris has engaged has been welcomed by all sides. It has nothing whatsoever to do with the amendment.

Acting Chairman (Senator Cáit Keane): Information on Cáit Keane Zoom on Cáit Keane I call the Minister.

Deputy Joan Burton: Information on Joan Burton Zoom on Joan Burton I thank Senator Norris for his very nice comments and his taste. ARFs are approved retirement funds. All retirement products have taxation implications which can change the nature of the return. In a defined benefit contribution scheme, there is, as the Senator said, a requirement to invest in an annuity-type product. The reason for that is very simple if one thinks about it. In respect of people retiring at 65 and receiving the entire lump sum, there have been many rather unhappy examples over the past decade where people, many of them self-employed professionals in the medical and legal fields with very high incomes, in good faith chose to invest because the then Minister for Finance, Charlie McCreevy, introduced the capacity of individuals to manage their own pension fund. In some cases, about which we have not heard too much, that has possibly worked out superbly, but we are all familiar with people who decided to do something through various mechanisms which appeared to be both profitable and patriotic and put all their retirement nest egg, which was very considerable in some cases, into the shares of one or more Irish banks. The rest is very sad history for some of the individuals.

Senator David Norris: Information on David P.B. Norris Zoom on David P.B. Norris Exactly.

Deputy Joan Burton: Information on Joan Burton Zoom on Joan Burton The question of what one does with somebody's lump sum on retirement is a very delicate and tricky investment strategy. In terms of regulation, a company director and experienced businessperson may be in a rather different place when it comes to managing their retirement fund than somebody whose practice has been in the medical or legal field and who is not used to managing investments. It is a big issue for defined contribution schemes, which are increasingly what we have nowadays. The practice has been to provide for a retirement annuity.

  As the Senator conceded, since 2012, we have successfully introduced sovereign annuities because the previous annuity that was available was through and related to German bonds. Given what happened in the financial markets, because of their value and desirability, German bonds became extremely expensive and offered almost no return. We have developed an alternative product of sovereign annuities based on a mixed basket of annuities. If memory serves me correctly, since their establishment in 2012, there has been an investment of about €1.3 billion into sovereign annuities which, as the Senator noted earlier, have returned quite attractive yields. However, it is a basket of annuities rather than German annuities which have been considered the safest in the context of the eurozone.   Senator Walsh's proposal is to invest in an approved retirement fund. The problem is that depending on the level and the rate of distribution the fund may run out. In his example he said that with an annuity somebody who lives for a limited period of time will not have utilised his or her full capital. Equally in an approved retirement fund, at the other end of the scale if people live for an extended period of time, the time may come when that person has utilised the ARF. We are trying to balance risk and longevity, which is not fully known. We have simply taken the best advice available.

  The Senator seemed to imply that people in a defined contribution scheme could not get involved in an ARF. My understanding is that they can get involved in an ARF. Perhaps I misunderstood what he said. In a defined pension scheme, because of how the schemes have been structured, it has taken the annuity route. Particularly since the development of the sovereign annuity we have taken into account the points he is making of the extraordinary expense with low level of return of the annuity. The modified sovereign annuity addresses some of the issues he has raised.

  I understand the Senator's concerns but I do not propose to accept the amendment because I believe the arrangement around the annuity is such that while at particular times it can be difficult at other times it makes considerable sense and it provides for a lifetime, whereas the Senator's proposal has a risk that at a certain point the ARF will become exhausted.

Senator Jim Walsh: Information on Jim Walsh Zoom on Jim Walsh Simply because I made no comment about the Minister's scarf, she should not take that as being in any way negative about the colours or anything like that; I just did not think it was relevant.

Deputy Joan Burton: Information on Joan Burton Zoom on Joan Burton This debate is not about my scarf, but I am happy to take compliments for Irish workmanship.

Senator Jim Walsh: Information on Jim Walsh Zoom on Jim Walsh It did not dawn on me that it was relevant to the debate.

Deputy Joan Burton: Information on Joan Burton Zoom on Joan Burton It is compliments to the Irish craftspeople.

Senator Darragh O'Brien: Information on Darragh O'Brien Zoom on Darragh O'Brien We heard the Minister's interview.

Deputy Joan Burton: Information on Joan Burton Zoom on Joan Burton It was this time last year at the National Crafts and Design Fair.

Senator Jim Walsh: Information on Jim Walsh Zoom on Jim Walsh I was not in any way decrying the sovereign annuity system from the point of view of returns, which I think is fine. I also accept that as we have read in newspaper reports and elsewhere, many people have built up tens of millions of euro in pension schemes. That has now been changed. From a tax point of view the Government has gone too far the other way. There needs to be an incentive to get people into pension funds and to provide for themselves. We will have a huge future liability in that regard.

  However, people should have the option to buy annuities. There are certain safeguards in that people get a guaranteed income stream and are no longer carrying the risk; there are certain arguments in favour of that. People should be able to manage it through the approved retirement fund, ARF, and there are professional managers who will do that. There may well be issues about regulating those more strictly than we are doing and making them more accountable - I believe there are moves in that regard based on information from some people in the industry. Ultimately, where people have worked for their lifetime and have accrued a certain amount of money in their pension pot, both they and their families should be the beneficiaries of that rather than the pension scheme and that option should be available to them.

  I fully accept that many people would not be able to make investment decisions.  However, those people already have the management of their funds within the schemes. As they are working, they are subscribing and the employers are subscribing, and those funds are being professionally managed. It should not be too difficult to extend that beyond the retirement date.

  I am not surprised that the Minister will not accept the amendment, but it disappoints me because I believe the pension area needs to be looked at much more thoroughly. Not many politicians will say this to the Minister. I ask her to look at the public service defined-benefit scheme, which is a benefit to us, and consider changing it to a defined-contribution scheme. If she did that I believe within a week or two her officials would come up with ideas along the lines I am suggesting which would benefit people who are caught in this position now. They should not be disadvantaged just because they are in the private sector.

  There is nothing to prevent the Minister putting a distribution cap on the funds. An argument used in the past was that people would dissipate the fund over a short number of years. Obviously it has been possible to apply a tax on an imputed distribution, which at 5% is far too high given that it is only a 20-year period. It exceeds the annuities and is unfair to people. I believe it was stitched in initially at 3% and was then raised to 5%. Once it goes over a certain level - it may be that €2 million is the right amount - it could be 6%. For those with small pots of money, as most of these schemes will have, based on the earlier discussions, it is not impossible and should not be beyond our wit to devise a scheme which would be in the interests of people who have these pensions.

  We discussed mutual funds on Committee Stage. Where people can visualise the growth in the amount of money accruing in their pension pot, it incentivises them to contribute what they can because it is tax efficient - there is a deferred tax arrangement. It could be good from the point of view of getting people into the pension mode and providing for themselves. In 20 or 30 years when probably none of us will be in these Houses, the State may find it impossible to pay public service pensions and the State pension. In anticipation of that Mr. Charlie McCreevy started providing for that ten years ago. Unfortunately the pot of money was used to salvage the banking crisis. The concept is certainly as valid and probably more urgent than it was when he did it. If we do not open our minds to such things, we are losing an opportunity to structure for the future.

Amendment put:

The Seanad divided: Tá, 15; Níl, 27.

Níl
Information on Sean D. Barrett   Zoom on Sean D. Barrett   Barrett, Sean D. Information on Ivana Bacik   Zoom on Ivana Bacik   Bacik, Ivana.
Information on Thomas Byrne   Zoom on Thomas Byrne   Byrne, Thomas. Information on Colm Burke   Zoom on Colm Burke   Burke, Colm.
Information on John Crown   Zoom on John Crown   Crown, John. Information on Deirdre Clune   Zoom on Deirdre Clune   Clune, Deirdre.
Information on Terry Leyden   Zoom on Terry Leyden   Leyden, Terry. Information on Eamonn Coghlan   Zoom on Eamonn Coghlan   Coghlan, Eamonn.
Information on Marc MacSharry   Zoom on Marc MacSharry   MacSharry, Marc. Information on Paul Coghlan   Zoom on Paul Coghlan   Coghlan, Paul.
Information on Paschal Mooney   Zoom on Paschal Mooney   Mooney, Paschal. Information on Michael Comiskey   Zoom on Michael Comiskey   Comiskey, Michael.
Information on Rónán Mullen   Zoom on Rónán Mullen   Mullen, Rónán. Information on Martin Conway   Zoom on Martin Conway   Conway, Martin.
Information on Brian Ó Domhnaill   Zoom on Brian Ó Domhnaill   Ó Domhnaill, Brian. Information on Maurice Cummins   Zoom on Maurice Cummins   Cummins, Maurice.
Information on Labhrás Ó Murchú   Zoom on Labhrás Ó Murchú   Ó Murchú, Labhrás. Information on Jim D'Arcy   Zoom on Jim D'Arcy   D'Arcy, Jim.
Information on Darragh O'Brien   Zoom on Darragh O'Brien   O'Brien, Darragh. Information on Michael D'Arcy   Zoom on Michael D'Arcy   D'Arcy, Michael.
Information on Ned O'Sullivan   Zoom on Ned O'Sullivan   O'Sullivan, Ned. Information on John Gilroy   Zoom on John Gilroy   Gilroy, John.
Information on Averil Power   Zoom on Averil Power   Power, Averil. Information on Aideen Hayden   Zoom on Aideen Hayden   Hayden, Aideen.
Information on Feargal Quinn   Zoom on Feargal Quinn   Quinn, Feargal. Information on Lorraine Higgins   Zoom on Lorraine Higgins   Higgins, Lorraine.
Information on Jim Walsh   Zoom on Jim Walsh   Walsh, Jim. Information on Cáit Keane   Zoom on Cáit Keane   Keane, Cáit.
Information on Diarmuid Wilson   Zoom on Diarmuid Wilson   Wilson, Diarmuid. Information on Marie Moloney   Zoom on Marie Moloney   Moloney, Marie.
  Information on Mary Moran   Zoom on Mary Moran   Moran, Mary.
  Information on Tony Mulcahy   Zoom on Tony Mulcahy   Mulcahy, Tony.
  Information on Michael Mullins   Zoom on Michael Mullins   Mullins, Michael.
  Information on Hildegarde Naughton   Zoom on Hildegarde Naughton   Naughton, Hildegarde.
  Information on Catherine Noone   Zoom on Catherine Noone   Noone, Catherine.
  Information on David P.B. Norris   Zoom on David P.B. Norris   Norris, David.
  Information on Marie-Louise O'Donnell   Zoom on Marie-Louise O'Donnell   O'Donnell, Marie-Louise.
  Information on Susan O'Keeffe   Zoom on Susan O'Keeffe   O'Keeffe, Susan.
  Information on Pat O'Neill   Zoom on Pat O'Neill   O'Neill, Pat.
  Information on Jillian van Turnhout   Zoom on Jillian van Turnhout   van Turnhout, Jillian.
  Information on John Whelan   Zoom on John Whelan   Whelan, John.
  Information on Katherine Zappone   Zoom on Katherine Zappone   Zappone, Katherine.


Tellers: Tá, Senators Ned O'Sullivan and Diarmuid Wilson; Níl, Senators Paul Coghlan and Aideen Hayden.

Amendment declared lost.

Acting Chairman (Senator Diarmuid Wilson): Information on Diarmuid Wilson Zoom on Diarmuid Wilson Amendments Nos. 3 to 6, inclusive, are related and may be discussed together by agreement. Is that agreed? Agreed.

Senator Sean D. Barrett: Information on Sean D. Barrett Zoom on Sean D. Barrett I move amendment No. 3:

In page 14, between lines 16 and 17, to insert the following:

“(c) a statement of the reasons for the application to include administration costs, the award of added years to retirees, the extent of underestimated longevity, poor investment returns, failure to increase the retirement age and other reasons for the inability of the resources of the scheme to discharge its liabilities.”.

I welcome the Minister to the House following her weekend visit to Kerry.

  On the purpose of these amendments, pension funds can go broke for a number of reasons. I did not want an open door to the Minister's Department or the Department of the Minister, Deputy Noonan, without putting some constraints upon it. That is the so-called moral hazard problem in that if people who make the wrong choices do not bear some of the consequences, they will continue to make the wrong choices. As the Minister knows because we have discussed it many times, Ireland has been more prone to that than virtually any country we can name. We have had a posse of people from the financial sector into the Department of Finance taking large amounts in supports and bailouts including insurance companies, which have been doing it since the mid-1980s, failed banks and credit unions, which is a recent development involving €52 million. We have had unreliable accounts forming the basis for Government acquisitions, and we find now that the deficit is far greater than we hoped, and badly-run pension funds might go broke because of many factors that we have mentioned.

  There is a wish in society that we would no longer live in the unrealistic expectation that whatever mistakes one makes one will be bailed out by some fund or other, and that there is always somebody who will pay. It weakens the standing of financial services here to have a trail of mendicants going into the Minister's office and the office of the Minister for Finance, Deputy Noonan.

  What the Bill requires of somebody seeking this assistance is that an actuary shall prepare a statement on the difference between the liabilities in respect of the benefits referred to and the resources of that scheme that are available to discharge these liabilities. Under subsection (2) that statement is then sent on by the trustees to the Pensions Board and a copy of the statement under subsection (1).

  The amendment proposes to seek other types of information we believe should properly be part of the assessment of that request from the Irish financial sector for assistance. They include administration costs. Page 1 of the Department's 2012 document on pension charges states that if somebody aged 35 put €250 a month aside for 30 years there would be a fund of approximately €200,000, with a pension of about €10,000 per annum. If an average charge for administration of 2.18% per annum is applied, the final fund is reduced to €62,000, resulting in a lower pension of €6,900 per annum. That is a 2.1% decrease, and some funds in Ireland have a higher administration cost. That contrasts with the United Kingdom, which was aiming for a figure of 0.75%, and the Legal & General company, which we discussed on Committee Stage, which says it should be done at 0.5%.

  If one of the reasons this fund is looking for assistance from the Minister, and a recommendation from the Minister for Finance, is that its administration costs are too high, I am trying to give the Minister the power to say we should emulate Legal & General or the UK system and have a 0.75% administration cost or, better still, an administration cost of 0.5%. If people have excessive administration costs, and the Minister's example shows how much that is reducing pensions already, can we put the grip on the pensions industry to ensure it does not get itself into trouble as a result of excessive administration costs? That is the purpose of the first amendment.

  My second point is on the award of added years. That was a custom during the unrealistic era the Minister described recently. It is surely a measure of irresponsibility that people around a table decide to award themselves more money, bankrupt a fund and then confer that debt on the future members of society. The Minister should have an ability to say she does not think much of the awarding of additional years that got them into trouble. I presume the practice of awarding extra years has stopped. It was a form of insider dealing in pension funds in that the people in the room were very happy but they piled a huge bundle of debt either onto the Minister, the Minister for Finance, Deputy Noonan, or the other members of the scheme.

  The Minister referred to the extent of underestimated longevity in the introduction. In response to that case being made by actuaries, we have the graph on that. The Department of Health and the Central Statistics Office have known for years that life expectancy was increasing. Why did it never dawn on those people running pension funds?

Senator David Norris: Information on David P.B. Norris Zoom on David P.B. Norris Hear, hear.

Senator Sean D. Barrett: Information on Sean D. Barrett Zoom on Sean D. Barrett That is a level of incompetence. According to the one I downloaded from the Department of Health website last night, life expectancy in 1960 was 69.69. Happily, today is 80.50. That information is available as a public document. The actuaries do not even have to do anything. They can just Google the Central Statistics Office and get the information. I do not understand how people could say they got into trouble because they did not anticipate the increase in longevity. Senator Crown gave the example of Bismarck, on introducing the pension, saying he hoped to save a good deal of money because not many people would make it to age 65. Why is our pension industry-----

Senator David Norris: Information on David P.B. Norris Zoom on David P.B. Norris Particularly in Germany, with all the wars.

Senator Sean D. Barrett: Information on Sean D. Barrett Zoom on Sean D. Barrett Why are the actuaries pleading as a factor to the Minister that they did not think people would live that long when it is hardly fresh news in society that that has been happening? It was well known that the people who retired in 1960, 53 yeas ago, would live longer.

  We have a tradition of poor investment returns by insurance companies, banks, accountants and so on. Why is that always the role of the taxpayers or somebody else? I would have thought a good penalty for poor investment returns should be visited on the people who made the investments.

  On the failure to increase the retirement age, that was a solution that has been mentioned many times, including in this House. With the support of every Member, the House agreed to Senator White's motion against compulsory retirement. One of the troika recommendations is to increase the retirement age but knowing that people were living longer and doing nothing about the retirement age while saying it is somebody else's fault, putting a levy on other insurance companies, asking to be bailed out again and giving other reasons for the inability of the resources of the scheme to discharge its liabilities, is wrong.  They would indicate there is a risk for the Minister that she would be bailing out incompetence. They should bear some of the liability if they have not performed up to the efficiency standard one would normally expect under the various headings.

  I refer to amendment No. 4. In respect of an application under subsection (4), I want to add in the factors I have just considered. When the Minister gets an application, she should be able to see how much of it was caused by bad luck or events which were not foreseeable and how much was caused by the incompetent running of the fund. She should have a say on that.

  Amendment No. 5 seeks to bring in the Minister for Finance and the Minister for Public Expenditure and Reform with the power to approve, which is in the Bill, but also to amend. Both Ministers come to the House quite frequently and I do not think they have ever been mistaken for a rubber-stamp. They may have thoughts they might wish to exchange on whether they should approve it. They might increase it but amendment No. 5 seeks to give them the power to amend. After all, if they are going to pay the bill, they should have some thoughts on it.

  It should state the Minister for Finance shall, in consultation with the Minister for Public Expenditure and Reform, approve or amend the request made under subsection (5). We are trying to get them to engage in dialogue with the Minister as to whether they should approve it or whether they have any thoughts on it.

  The last amendment seeks to provide that 12 months after the passing of the Social and Pensions (No. 2) Act 2013 and on each anniversary of such passing, a report should be prepared on the applications made under subsection (4). I would like the Minister's thoughts on the amended subsection (2). The review should cover the main reasons these claims are being made and how they have impacted on the operation of the Act. The principle of the annual review is extremely good and I wish more Ministers would carry one out but I think the Minister should be allowed to comment on the main reasons these reports are necessary and why pension funds got into trouble.

  I thank the Minister for coming to the House and express the hope the taxpayer and the persons whose funds are being managed by the pension fund managers would be better protected if the amendments we propose were accepted.

Senator Feargal Quinn: Information on Feargal Quinn Zoom on Feargal Quinn I second the amendment. They say an actor should never follow children or animals on to the stage. I feel the same following Senator Barrett because he covers and explains everything so well that there is almost nothing more on which I can touch.

  I have some knowledge of the administration costs. I refer to the list the Senator gave which should be included. The first is administration costs. There is little doubt that the figures are wild and can go anywhere. Senator Barrett spoke about 0.75% as against 0.25%. That makes a huge difference but that is only one instance. I will not repeat what Senator Barrett already said but the award of extra years to retirees, the extent of under-estimated longevity, the poor investment returns, the failure to increase the retirement age and other reasons for the inability of the resources of the scheme to discharge its liability just go on and not to include them seems wrong.

  Senator Barrett made the point very clearly in regard to amendment No. 4. The Bill states that the Minister for Finance shall in consultation with the Minister for Public Expenditure and Reform approve the request made under subsection (5). It makes sense to state "approve or amend". It seems to such a minor point but why should he only have the right to approve but not to amend? The amendments make sense and I urge the Minister to consider them.

Senator Darragh O'Brien: Information on Darragh O'Brien Zoom on Darragh O'Brien I support the amendment on the basis that it will give additional clarity, although I have an overall concern with the Bill. I know the Minister is grappling with a very difficult situation in pensions reform and I understand there will be more coming down the road from her Department. If one thinks about the area of added years to retirees, Senator Barrett will be aware that our universities are among the worst culprits of that in their pension schemes.

Senator Sean D. Barrett: Information on Sean D. Barrett Zoom on Sean D. Barrett Absolutely.

Senator Darragh O'Brien: Information on Darragh O'Brien Zoom on Darragh O'Brien The Committee of Public Accounts investigated that at the time. That was against Government advice and against an order given by the then Minister for Finance, the late Brian Lenihan. In that context, one can see the power trustees had to grant additional service without taking into account any additional cost to the rest of the scheme. I know Senator Barrett is aware of that and I want to let him know I am aware of it also.

  This amendment makes a lot of sense in regard to providing additional information. I have a concerns about the change of priority orders in the Bill and with other aspects also. I worked in the industry for 15 years and saw some schemes where the trustees, as a separate legal entity to the company, made some sensible choices. I am concerned that this legislation may allow employers who would not have a conscience in regard to their pension scheme to use this avenue to simply extricate themselves from future liability. That is a major concern I have. I know of quite a large scheme in which I have a retained benefit where the trustees actually proposed the extension of retirement ages and a freeze in pensions in payment to get the scheme back on track. Every effort should be made to ensure they put forward those proposals to the Pensions Board. I know that had to be done earlier but many schemes clamoured to meet that deadline. I think the deadline was too tight and many of them left it until late in the day.

  To get back to the amendment, I do not see any reason we could not be more prescriptive and accept what Senator Barrett proposed. If one looks at administration charges, fund charges, allocation rates within the scheme, commissions paid, renewal commissions and override commissions, in many instances all these things are actually far worse than in the report the Minister published. The problem goes back to the start, at which I know the Minister has been looking, which is disclosure at the very beginning. While the disclosure we have on pension products is well-meaning, a normal scheme member will not read it. If anything, there is too much detail. It comes as a big surprise to people as they approach retirement to find they have been paying into a scheme and that, in many instances, they have been charged way above the odds, where it looks as if everything is going grand and where they do not understand the 2% fund management charge which is significant because it is a compound charge on the fund.

  While this is being done in the Social Welfare and Pensions (No. 2) Bill, the Minister knows a lot more needs to be done to bring it together. I have talked to former colleagues in the industry and if one looks at new investment in pensions - I am not talking about the large executive schemes but those for the normal worker - they are way down. In the industry, which is struggling, 10% of all business written is new business. The rest of it is business being passed from one investment house to another - existing schemes with retained benefits moving from one to the other. Our pension problem will get bigger.

  If the Minister does not accept this amendment, how will she and her Department review legislation in the future? I know I am straying a little off the amendment. Investment conditions improve and scheme structures improve and, hopefully, fund managers and the risks and investment strategies they take will improve in the future. Some have done far better than others because they have taken a more prudent approach.  A pension should be a prudent long-term investment. Will the Minister consider this and other legislation that the Government is bringing forward to allow people to get out of defined benefit arrangements? I do not see anyone going back into defined benefits schemes because people have lost retained benefits, pensions and payments and have had entitlements reduced. I have an uneasy feeling that we are letting the employer, the fund manager and the trustee off the hook. The employer, the taxpayer and the Minister will in many instances be left carrying the can. When this legislation and other Bills are passed, we will be carrying the can for the mistakes that have been made, particularly in respect of priority orders and under-funded schemes because as things improve, no one will go back to the way they were. It is the person who has been prudent in trying to provide for his or her retirement who will be affected, not the fund manager, not the trustee and certainly not the employer.

  The amendment is sensible. I would like to hear the Minister’s view of it because I and my colleagues will certainly support it. The amendment gives the Minister more information on the alternatives that a scheme trustee may or may not have tried. I have seen sensible arrangements for restructuring of schemes. They focus on the pensioner, the scheme member and those with retained benefits in funds that are fair. I am worried that many employers will see this as an opportunity to get out.

  Are there any instances where the Minister would see this legislation impacting on the university schemes that were transferred to be managed by the National Treasury Management Agency, NTMA? How are they being managed? Are they managed as separate legal entities within the NTMA and does the Minister envisage any changes in those schemes based on this legislation?

Senator David Norris: Information on David P.B. Norris Zoom on David P.B. Norris We are very close to the end of this legislation. Is it possible for the Acting Chairman to contact the Leader of the House, Senator Cummins, or the Acting Leader, to extend the debate?

Senator Mary Moran: Information on Mary Moran Zoom on Mary Moran I am the Acting Leader. We have already had agreement from the Leader that if we need extra time we can extend the debate to 6 p.m. I propose that we extend to 6 p.m.

Acting Chairman (Senator Diarmuid Wilson): Information on Diarmuid Wilson Zoom on Diarmuid Wilson Is that agreed? Agreed.

Senator David Norris: Information on David P.B. Norris Zoom on David P.B. Norris I thank the Acting Leader.

Acting Chairman (Senator Diarmuid Wilson): Information on Diarmuid Wilson Zoom on Diarmuid Wilson The extension does not give us leeway to stay on the same amendment until 6 p.m. The object of the exercise is to finish the debate.

Senator David Norris: Information on David P.B. Norris Zoom on David P.B. Norris Of course not. I have some quick, and I hope reasonably succinct, points to make on this. I welcome the fact that we will be able to dispose of this. There are only a few Members here. May I gloat and say that the smallest group in the House, smaller even than the Taoiseach’s Independent nominees, has consistently had the greatest number of representatives here? We now have four, Fianna Fáil has three, the Labour Party, one, and Fine Gael, two.

Acting Chairman (Senator Diarmuid Wilson): Information on Diarmuid Wilson Zoom on Diarmuid Wilson I thought Senator Norris was going to speak on the amendment.

Senator David Norris: Information on David P.B. Norris Zoom on David P.B. Norris That is very important.

  I hope the Minister will be able to accept this amendment. She will have some difficulty defending her position if she does not, in light of what she said earlier this afternoon. She pointed out the difficulties that pension schemes have got into because of people’s extended longevity. That is contained in this amendment. In the sections of the Bill, to which Senators Barrett and Quinn have referred in their excellent amendment, how much is gone? What is the difference? What will we have to fork out? It is much more important to understand why, instead of what and how much. Why did this happen? If we do not understand why it happens it is quite likely to happen again. For that reason I think this is an excellent amendment and the Minister has argued for it. I very much hope that she will be able to accept that.

  I also feel strongly about amendment No. 5. I would not want to be the one trying to tie the hands of the Minister for Finance, Deputy Noonan. He is an old friend of mine but I would say that he could be pugnacious enough if he took the notion. The Bill states that the Minister for Finance shall in consultation approve the request but what if it is a rotten request? Why should he approve it? I cannot imagine any circumstance so nonsensical that somebody should be required by law to approve something. This is in legislation before anything has been produced. People do not sign blank cheques. Bertie Ahern’s day is long gone. Why should the Minister be expected to sign a blank cheque? I support these amendments.

Deputy Joan Burton: Information on Joan Burton Zoom on Joan Burton Senator Darragh O’Brien recalled the time when the late Minister for Finance, Brian Lenihan, took a whole series of pension schemes along with their assets and liabilities, onto the State’s balance sheets. I think it was the first time I heard of the practice of giving people extended years, which seemed to be fairly common in universities, not in institutes of technology or the Dublin Institute of Technology, where I worked and never heard of it. There had been rumours about it but the Minister was not the only person to be surprised at how liberal that practice was. That had huge implications. In answer to Senator O’Brien’s direct question, they are in effect State schemes, taken over by the State. The Economic and Social Research Institute, ESRI, was also drawn in and the State took over its pension scheme.

  In this case we are providing for a double insolvency, that is where the firm and the scheme are insolvent. We rather hope that will be a relatively rare occurrence as it has been in the past, the most notable example being Waterford Crystal. Since 2008 an EU pensions directive places certain obligations on the Irish Government. Waterford Crystal is involved in an ongoing legal case. The rules we are putting in place are to provide in future for the double insolvency. This means that the firm is insolvent.

  In the legislation we are providing for the draw-down of the amount required to cover the shortfall in the resources of the scheme. The Minister for Finance, on behalf of all taxpayers, covers that shortfall on certain very clear conditions and application, via the Pensions Board and the Minister for Social Protection on application to the Minister for Finance. Sub-section 48(a) provides for: the certification of the shortfall in scheme resources by the scheme actuary in accordance with statutory guidance issued by the Pensions Board; application by the trustees of the pension scheme to the Pensions Board to certify the shortfall in scheme resources, in accordance with statutory guidance issued by the Pensions Board; and certification of the amount by the Pensions Board where the board is satisfied that the trustees of the scheme have complied with statutory guidance and with guidelines issued by the Minister.  Two requirements are being drawn up and will be published. That is where I believe the spirit of the amendment is important. The statutory guidance and the guidelines, which will be drawn up and issued by the Minister, are being worked on as we speak in regard to the application by the trustees of the scheme to the Minister for Social Protection to request the Minister for Finance to discharge the amount certified to the trustees of the pension scheme. It is an application process to ensure the interests, if one likes, of the pensioners, both active and deferred, are protected to a certain degree in the event of a double insolvency, which includes the insolvency of the company. I will make that request to the Minister for Finance where I am satisfied, as Minister, that the guidelines I have made in this regard and the statutory guidance issued by the Pensions Board have been complied with.

  The statutory guidance is issued by the Pensions Board and will set out the technical details in regard to the certification of the shortfall in scheme resources and in regard to the form of the application required when applying to the board to certify the amount of the shortfall. That is being worked on and will only be finalised and published after this legislation has been passed. There are the guidelines issued by the Minister in regard to the certification of the shortfall by the Pensions Board. The statutory guidance and the guidelines are the detailed working operation of how this issue is to be dealt with in a double insolvency. The issues raised in the amendment go back into the history of the scheme and, in some ways, we could almost say it is a summary of what went wrong and what they were less than prudent about, and so, for historical reasons, we ought to be told about it. I would prefer to reflect that in the statutory guidance to the Pensions Board and in the guidelines for the reason that, because it is a double insolvency where the company itself is gone, it may be difficult in some cases to go back for the detailed information that is being talked about in the amendment.

  I am happy to consider the points that have been made by the Senators and I take those points as being very well made. The purpose of what we are doing in the legislation, however, is to transpose the EU directive into Irish law to give the people in the pension scheme the protection of the directive. As has been said, it would be important that we would learn from what happens in these cases. In some ways, that is probably the purpose of the amendment, which deals with the issue of moral hazard. As with all these inquiries into what happened, there is probably a vicarious satisfaction in getting the information, and some of that may have other consequences. We also want the information to learn how to avoid this in future.

  I understand the point the Senators who proposed the amendment are making. I will undertake to do that but I would prefer not to have it in the legislation because the legislation is to deal with the actual double insolvency. Given that double insolvency involves the insolvency of the company, to have a legal requirement to go back, as it were, almost to undo or to find out everything that happened could, in certain circumstances, be difficult, if not impossible. I will certainly undertake to seek to reflect what is being said by the Senators in the statutory guidance and the guidelines. That said, I would prefer not to take it into the legislation for the reasons I have outlined.

Senator Sean D. Barrett: Information on Sean D. Barrett Zoom on Sean D. Barrett I thank the Minister for what she said about the statutory guidelines. As in many of these matters, we are trying to prevent recurrences and we are trying to run things better from this day forward. I believe that is the function of the Seanad and the Oireachtas, and that is what we have come into the Houses of the Oireachtas to do. I thank the Minister for her open-mindedness towards what we are saying. There may be other reasons that we, the Minister and her Department will think of as to why schemes crashed. I thank Senator Darragh O'Brien. Part of the reason I tabled the amendments is that I saw a scheme do this to itself. The Minister mentioned the research institutes and so on. Here were people, who were not short of giving all sorts of advice on how other people should run their affairs, behaving scandalously in the conduct of a pension fund. It is wrong that a group of people in a room decide to award themselves added years and then send it down to Busáras because there is a Minister for Social Protection there who they believe will bail them out.

  On the costs, the industry has to be made competitive with the UK. The Minister said we have too many small schemes and that perhaps the investment opportunities are not big enough. This is an era of free trade. It is not a good excuse for pension fund people to tell the Minister they did not think they could invest as well as pension fund people from other countries. The high cost of sheltered sector services and the inefficiency of the financial sector are major reasons we are in this room now.

  On the issue of longevity, I do not know what standards actuaries have that they did not use information which the Central Statistics Office, located in the Department of the Taoiseach, has been publishing since it was founded 70 or 80 years ago. It is no secret that people are living longer and it is no good having people feign surprise when they come to see the Minister. If there are any other reasons, I want to hear them.

  The Minister did not refer, in particular, to the role of the Department of Finance but it would not be right if undue pressure were put on the Minister for Social Protection. The Minister for Finance, as the custodian of the public purse, should engage in some kind of dialogue rather than, as my colleagues have said, just giving approval. Again, our history of bailouts tends to be that line Departments get the pressure put on them. Nobody would wish to repeat the incorporeal Cabinet meetings dealing with large amounts of money. I do not know the definition of such a meeting but the Minister might consider some formal proceedings because, as we said earlier, the Minister for Finance's rubber stamp is not what we need.

  The EU directive worries me. Sometimes, the Europeans tell us to do things which we know do not make sense. For example, we had the car insurance increase for women drivers under some kind of equality. Women got lower car insurance because they were better drivers and I did not see anything wrong with that.

Senator David Norris: Information on David P.B. Norris Zoom on David P.B. Norris Exactly.

Senator Sean D. Barrett: Information on Sean D. Barrett Zoom on Sean D. Barrett We had a good debate with the Minister of State, Deputy Kathleen Lynch, when she was in the House and it probably went against her grain to bring in such legislation. The Europeans designed a currency which has caused us untold misery. Tugging the forelock to what is in a European directive is not necessary. If we could do it more sensibly, would the Minister not take a look at the measures we have to prevent pension funds taking a well-beaten track to the Department of Social Protection looking for bailouts?

  I thank the Minister for addressing all the points my colleagues and I made and for bringing their spirit into the statutory regulations and statutory guidance. In her discussions with the Pensions Board, a harder line probably needs to be taken, as the regulators of credit unions, banks and accountants needed to take a harder line heretofore. Part of the recovery of the economy has to be a much better performing financial sector, rather than seeking a bailout when we are broke on the basis that money was given to the people who were there before, and this bailout given, as Senator Norris said, at the expense of funds that were run properly and which are paying a levy to the ones which were not.

  We in Ireland have a long history of rescuing the wrong kinds of companies.  It is not a very good method of portfolio selection, that when people go broke they turn to the Exchequer.

  I thank the Minister for taking those points on board. Perhaps when the Minister has the annual review, which is provided for at the end of the Bill, we could have a debate on these issues again on each anniversary of the passing of the Bill. The House will have to ensure that the performance of pension funds on all the grounds on which the Minister and Senator O'Brien have agreed must be better in future.

Acting Chairman (Senator Michael Mullins): Information on Michael Mullins Zoom on Michael Mullins Is the amendment being pressed?

Senator Sean D. Barrett: Information on Sean D. Barrett Zoom on Sean D. Barrett No, and I thank the Minister for giving us very good reasons not to press it.

  Amendment, by leave, withdrawn.

  Amendment No. 4 not moved.

Senator Sean D. Barrett: Information on Sean D. Barrett Zoom on Sean D. Barrett I move amendment No. 5:

In page 15, line 3, after “approve” to insert “or amend”.

What is the role envisaged for the Minister for Finance?

Deputy Joan Burton: Information on Joan Burton Zoom on Joan Burton Briefly, the role of the Minister for Finance is to pony up the money that has been extracted from taxpayers to meet this shortfall. Otherwise, the pensioners could be left completely bereft in a case of a double insolvency, the E double.

Senator Darragh O'Brien: Information on Darragh O'Brien Zoom on Darragh O'Brien Double only in this instance.

Deputy Joan Burton: Information on Joan Burton Zoom on Joan Burton The others are provided for in terms of scheme restructuring. This refers to a specific case, which has been a relatively rare event, but if it happens and people are left with nothing, the EU directive, which I believe was issued in 2008, comes into effect. This legislation gives effect to that.

  Amendment, by leave, withdrawn.

  Amendment No. 6 not moved.

Senator Jim Walsh: Information on Jim Walsh Zoom on Jim Walsh I move amendment No. 7:

In page 15, between lines 39 and 40, to insert the following:

"11. Section 50 of the Principal Act shall be amended by inserting a new subsection (1A) as follows:
“(1A) The pensions board shall not direct the trustees of a pension scheme to reduce the benefits of current and former scheme members and/or post-retirement increases in benefits for pensioner members where a sponsoring company or its parent company have the financial capacity to meet the under-funding in the scheme.”.”.

With regard to the double insolvency, obviously the trustees are empowered to reduce the benefit of the current and former members. The Long Title has caused us a little confusion because it strongly emphasises the insolvent companies, but it deals with the single insolvency, which is the fund, just by restructuring. It is understandable and logical given what the Minister is endeavouring to do in this Bill that the trustees of the scheme would be in a position to reallocate the funds in accordance with the legislation in a double insolvency. However, in a single insolvency, which is where the fund is in trouble but the employer is doing fine, the same powers are given.

  This comes down to a strong position on equity and fairness. I do not accept the Minister's response to amendment No. 1, that it would somehow disincentivise employers from taking the defined benefit route. There are probably no new defined benefit schemes being created at present by companies. If there are, they are minuscule. In fact, many defined benefit schemes are morphing into defined contribution schemes. There is nothing fundamentally wrong with defined contribution schemes, provided the employer makes a fair contribution, the employee does likewise and the fund is managed properly. In addition, crystallising the benefit to the employee will attract others to follow that course. I mentioned mutual funds on the last occasion we discussed this and the Minister acknowledged that they work very well in the United States. I recall meeting people who told me they had never appreciated that they would accumulate the amount of finance they had. They did it through mutual funds.

  I believe that is a good concept. Indeed, some of these funds have acted to guarantee the money in the funds, for example. We talk about unit trusts and so forth, but the State is borrowing money all the time. It will borrow on the bond market. Perhaps there is a way the State can use some of the available funds for investment here, by guaranteeing an appropriate level of funding, which might be modest but would be commensurate with the low risk involved. There are real opportunities here to develop that.

  To return to the amendment, if I am an employee of a company that is in financial difficulties and the pension fund is in difficulty, I must accept what is being prescribed in the legislation. If I am a current employee, it is a benefit to me and if I am retired, it will affect me because my pension will be cut. That is an entirely different situation from one where the defined benefit scheme in a company is under-funded, but the company is doing exceptionally well. Due to increasing profits, margins or whatever else, it decides, as many employers have, that there is risk attached to the defined benefit scheme and accordingly closes it down. There must be some protection for the employee in that regard, but there is none in this Bill.

  The Minister is facilitating successful companies, perhaps even multinational corporations. I gave the Minister an example on the last occasion, the EMI scheme. It is a disgrace. I also asked the Minister to find out if there is a disparity between the law here and the law in Britain. A total of €200 million was injected into the pension fund in Britain and all the employees there were beneficiaries of that as their pensions are fully funded. The employees of the same company in Ireland, however, many of whom had long service, found their pension fund was not funded. There was no need for the company to put the money into it. It was a small amount of money. If memory serves, I think €12 million would have been sufficient, compared with the €200 million. It would be neglectful of the Minister, people working in that section and the Members of the Oireachtas to allow that situation to continue. It is unfair and wrong.

  I intend to press this amendment. If the Minister refuses to accept it, I urge her to outline the logic for doing so. I do not accept the point the Minister made. Where companies are viable, as I said on Committee Stage, criteria could be laid down to determine what the financial profile of the company would be so it could meet this requirement. There must be some statutory obligation on such companies. We cannot permit a situation where unfortunate people who have served a company for 30 or 40 years are totally disadvantaged. I refer to a quotation which is on the back of my card. It has a great deal of resonance for me, as a member of Fianna Fáil, as I hope it would have for a member of the Labour Party and a Government Minister. The quotation, from Pedro Arrupe, is, "Let there be men and women who will bend their energies not to strengthen positions of privilege, but, to the best extent possible, reduce privilege in favour of the underprivileged".  That is a guiding principle we would do well to follow. I ask the Minister to think about that because we are disadvantaging employees and employers, some of whom are multinationals, such as the one I mentioned.

  I would welcome an answer in respect of the EMI situation and the position regarding the laws in Britain as against the laws in Ireland which obviously worked against a number of employees here as a consequence of what happened within that company.

Senator Darragh O'Brien: Information on Darragh O'Brien Zoom on Darragh O'Brien I formally second the amendment. I concur with what my colleague, Senator Jim Walsh, has said. This is the fundamental issue that my colleagues and I have with this Bill. The Long Title of the Bill is ambiguous because it highlights very clearly the double insolvency. It includes the additional wording at the end "to make additional provision for the restructuring of certain occupational pension schemes" etc. The issue is twofold. The Government has increased the pension levy to 0.75% from next year, which is a cash payment that schemes under pressure already have to pay. It has brought about a reduction in payment of schemes such as Tara Mines, Axa and various other pensions scheme because they have not had sufficient cash at hand and cannot realise assets to pay the pension levy. The increased levy which was to finish this year will now be 0.75% of the value of the fund and, apparently, will reduce further. This has resulted in Unilever pulling its whole pension fund out of Ireland from 1 January. I am sure those in the pensions unit of the Department have told the Minister that the fund which is in the region of €8 billion is made up of Irish and international assets. The fund had been managed here and is moving out of this country from 1 January and scheme members in Ireland have been advised accordingly. In the context of trying to assist schemes under pressure, what the Government is doing is increasing the charges on pension funds, full stop. The Minister for Finance, Deputy Michael Noonan, has imposed a significant change which is now 0.75%.

  The nub of the issue is that we have a situation where public sector pensions, including my own, come from current expenditure where there is no fund and no real reduction in pensions given that the Minister for Finance tagged on an amendment to ensure there would be no major changes to such pensions. Effectively, what the Minister is saying is that for a person on €13,000 or €14,000 per year in a scheme where a solvent employer decides that as a party to the scheme the company will not inject any additional funds into a marginally under-funded scheme, it gives that employer a way out. The Minister will propose a 10% reduction in pension and payments in what is the most significant restructuring of private pensions that has taken place. I do not believe the public and, particularly, those pensioners who receive pension payments, understand what is being done here today and what the Social Welfare and Pensions (No. 2) Bill will do to their retirement pots, pensions and payments. If we allow this to go through without amendment a raft of schemes will seek to get out of their defined benefit arrangements and restructure the priority order but to reduce the pensions that are paid. I agree with the Minister that where schemes are under pressure and where a person who has got a year to go to retirement may have paid into the scheme for 30 years, that person will get a vastly reduced pension payment.

  I wonder why in the Long Title of the Bill, particularly from line 12 onwards the Minister was not more prescriptive about saying that he would allow solvent employers with under-funded pension schemes to restructure their pension schemes for their benefit. I refer to the original point I made in regard to Senator Barrett's amendment, namely, that many of the charges, the fund performance and the mismanagement of schemes will be vested on those who have paid in for many years. Let us remember when we talk about priority orders, the reason they are in place is that those who are retired, generally speaking, do not have the ability to earn additional income. There could be people in their 70s and 80s who are receiving small pensions and on the basis of what is proposed, the Minister will be able to reduce those payments significantly and those people will not be able to earn any additional money. A raft of schemes will get out because all the major schemes are shutting down their defined benefit arrangements. This will lead to more schemes doing that and payments will be reduced further. The Minister does not have an easy job. I do not say there is a perfect solution but parameters should be set for a solvent employer. I wonder how the Department and the pensions board will look at this. I think they should be involved in the certification of such restructurings.

  That annual amounts of between €12,000 and €60,000 can be reduced by up to 10% and annual amounts over €60,000 can be reduced by 20% is fine and well. I proposed to the previous Government in January 2009 that any future increments in the public and Civil Service should be on a defined contribution basis in order that a fund is built up for the vast bulk of the people, including ourselves, who work within the public and Civil Service. We cannot continue to have a situation whereby the measures are drastically changed for private pensions while doing very little with public sector pensions and continue not to fund them by way of a separate fund. That is an indictment of this and previous Governments because further disparity was created between gold-plated public sector pensions and now we are allowing people who have saved 50% or less for private pensions to effectively have their employers, by way of being scheme trustees, take the legs from under them and reduce the pensions they have paid into for many years. I do not want to detain the House too long because we want to push this amendment before 6 p.m. and there are two minutes remaining so I will conclude.

Senator David Norris: Information on David P.B. Norris Zoom on David P.B. Norris I would like to use one of those minutes, if I may. I am largely persuaded by the arguments of my Fianna Fáil colleagues and particularly the EMI case raised by Senator Jim Walsh. There is a clear injustice in that case and it appears to be virtually the same as the Waterford Wedgwood case. Perhaps Senator Walsh would graciously accept an amendment to his amendment because there is a grammatical inaccuracy, which is a blemish upon the amendment. It should read: "a sponsoring company or its parent company has [not have] the financial capacity to meet the under-funding in the scheme."

Deputy Joan Burton: Information on Joan Burton Zoom on Joan Burton The origin of many of the difficulties lie in the financial collapse. I appreciate Fianna Fáil's very fine sentiments now but it is what happened in 2008 and the way in which funding in the country was structured-----

Senator Darragh O'Brien: Information on Darragh O'Brien Zoom on Darragh O'Brien That is incorrect.

Deputy Joan Burton: Information on Joan Burton Zoom on Joan Burton -----in relation to a large number of claims.

Senator Darragh O'Brien: Information on Darragh O'Brien Zoom on Darragh O'Brien Most Irish pension funds were heavily invested abroad.

Deputy Joan Burton: Information on Joan Burton Zoom on Joan Burton Sorry,

Senator Darragh O'Brien: Information on Darragh O'Brien Zoom on Darragh O'Brien What percentage of Irish pensions were invested in Irish equities and banks?

Deputy Joan Burton: Information on Joan Burton Zoom on Joan Burton The situation is that the country is in a slow recovery, with a slow recovery of employment.

Senator Darragh O'Brien: Information on Darragh O'Brien Zoom on Darragh O'Brien That has nothing to do with it.

Deputy Joan Burton: Information on Joan Burton Zoom on Joan Burton Among those institutions which are in difficulty as the Senator described at great length, are pension funds. The suspension of the funding standard in 2008, shortly after the bank guarantee, did not actually help the long-term sustainability of pension funds. The Government, of which the Senator was a member, decided to do that. I think it felt, like the bank guarantee and the First World War, it would be all over by Christmas. Unfortunately, it was not all over by Christmas. There was a rally of a week when it seemed like the cleverest thing in the world.

Senator Hildegarde Naughton: Information on Hildegarde Naughton Zoom on Hildegarde Naughton May I extend the debate for another 15 minutes to allow the Minister to respond?

Deputy Joan Burton: Information on Joan Burton Zoom on Joan Burton I will not even need five minutes.

Senator Hildegarde Naughton: Information on Hildegarde Naughton Zoom on Hildegarde Naughton I propose to extend the debate by five minutes.

Senator Darragh O'Brien: Information on Darragh O'Brien Zoom on Darragh O'Brien What time are we going to?

Senator Jim Walsh: Information on Jim Walsh Zoom on Jim Walsh Ten past six.

Acting Chairman (Senator Michael Mullins): Information on Michael Mullins Zoom on Michael Mullins What amount of time does the Minister need?

Deputy Joan Burton: Information on Joan Burton Zoom on Joan Burton Five minutes.

Senator Hildegarde Naughton: Information on Hildegarde Naughton Zoom on Hildegarde Naughton I propose an extension of five minutes.

Senator Darragh O'Brien: Information on Darragh O'Brien Zoom on Darragh O'Brien Sorry Minister, please excuse me for interrupting. It is important that there is a separate vote on amendment No. 7.

Senator Hildegarde Naughton: Information on Hildegarde Naughton Zoom on Hildegarde Naughton I propose to extend the time to 6.10 p.m.

Acting Chairman (Senator Michael Mullins): Information on Michael Mullins Zoom on Michael Mullins Is that agreed? Agreed.

Deputy Joan Burton: Information on Joan Burton Zoom on Joan Burton As I said, many of these difficulties have their origin in the peculiarities of the bank guarantee, the state of the economy and the suspension of the funding standard. I think people expected it would be all over by Christmas. Not only was it not over by Christmas, the situation continued for an extended period. What we are trying to do in the legislation is to allow schemes to restructure. There has been agreement on both sides of the House that if a scheme has an inherent viability, a restructuring plan would allow it to recover. We have examples of a great deal of work being done by trustees, by the members and representatives of trade unions and by employers in producing plans to restructure schemes in order that they become successful.

  At the outset of the debate I said that 40% of schemes have been involved in a successful restructuring process but about 20% of schemes have a serious difficulty. As Senator Darragh O'Brien knows, some of those schemes are very small, whereas others are very large with hundreds, and in some cases thousands, of members. The objective is to try to get the schemes to the best place possible. That is the reason we are providing in the Long Title and in the details of the Bill an additional basis for restructuring. An example was given during the Second Stage debate of people ranging from 62 to 64 years, current active members still in employment or deferred members who had taken a redundancy deal and were now approaching retirement age who would be entitled to nothing without some kind of restructuring. The existing pensioners, including friends who had retired at age 65 a few years previously received all the benefits, while the active staff and those with deferred pensions would be entitled to nothing. There was wide agreement on Second Stage to see what could be done while achieving the maximum protection.

  One thing that was not mentioned in the contribution is that we are protecting people with pensions of less than €12,000. All the information is that a significant proportion of the members, those still active in the workforce and those who have deferred entitlement in the various pension schemes, in particular some of the larger ones, are in that category. In addition, a significant number of the members of such schemes have access to the State retirement pension. That is worth roughly €12,000. If somebody has the State retirement pension, he or she is also protected in terms of their defined benefit pension up to €12,000. Many people in defined benefit schemes have entitlements significantly below €12,000. The combination of the State pension and defined benefit pension of €12,000 would give them a retirement pension of something around €24,000. As a proportion of the average industrial wage, which is somewhere in the region of €34,000 to €36,000, a retirement income of up to €24,000 would be deemed to be a significant provision. It may not be all that people want and we had an earlier discussion on the advisability of saving more in pension schemes. We are trying in this legislation to help the maximum number of pension schemes to meet a funding restructuring requirement that will give them sustainability that will cover the current active members in employment and those who have deferred entitlement. Many organisations have made changes in their pension schemes from defined benefit schemes to defined contribution schemes Younger people simply join defined contribution pension schemes.

  I was asked about future pension regulation. What is happening in respect of defined contribution pensions will become an issue because of the difficulty of individuals managing their own pension fund. I commissioned and published a report on pensions which showed that charges for people in pension funds are very high. As has been said, the decisions are not easy. I have exhausted the time. I want members to understand that the purpose of the legislation, on which there has been significant consultation and debate, is to provide for sustainability for the maximum number of funds through restructuring, if necessary, and to provide specifically for the double insolvency situation in the context of the EU directive.

Senator Jim Walsh: Information on Jim Walsh Zoom on Jim Walsh I am disappointed with the response. I understand what the Minister is trying to do in the Bill, but in effect, existing pensioners in schemes that are in difficulty will lose money, ranging from 10% to 20%, depending on where they are on the scale in most instances.

Deputy Joan Burton: Information on Joan Burton Zoom on Joan Burton The majority of people have less that €12,000.

Senator Jim Walsh: Information on Jim Walsh Zoom on Jim Walsh I find it very difficult to accept that. The Minister is talking about people who are working in manual employment. In my opinion very few would be at that low level. Having said that, there are many on the other side of €12,000 as well. Pensioners who are in receipt of a pension above €12,000 will find their pensions being cut. People who are coming up to retirement age will get a bit of a break. As my colleague has said, this is being funded primarily by other pensioners and other people's pension funds, including pension funds that are in deficit, on which there is a levy. There is no cohesive Government policy on pensions. Similar to what is happening in regard to health insurance, this is having the effect of discouraging people from providing for themselves, which is wrong. There needs to be a root and branch look at this. The Minister needs advice from the best experts and if this is not available internally, she should get external advice. This needs to be done.

  The Minister is not accepting my amendment, which is trying to provide that pensioners, be they about to retire or retired, will not be disadvantaged if their company is profitable and able to meet the shortfall. The effect of what the Minister is doing is allowing profitable companies to close pension funds, which is to the disadvantage of the employees who will be affected. Accordingly, I am calling a vote on this amendment.

Amendment put:

The Seanad divided: Tá, 11; Níl, 26.

Níl
Information on Sean D. Barrett   Zoom on Sean D. Barrett   Barrett, Sean D. Information on Ivana Bacik   Zoom on Ivana Bacik   Bacik, Ivana.
Information on Thomas Byrne   Zoom on Thomas Byrne   Byrne, Thomas. Information on Terry Brennan   Zoom on Terry Brennan   Brennan, Terry.
Information on Paschal Mooney   Zoom on Paschal Mooney   Mooney, Paschal. Information on Colm Burke   Zoom on Colm Burke   Burke, Colm.
Information on Rónán Mullen   Zoom on Rónán Mullen   Mullen, Rónán. Information on Deirdre Clune   Zoom on Deirdre Clune   Clune, Deirdre.
Information on David P.B. Norris   Zoom on David P.B. Norris   Norris, David. Information on Eamonn Coghlan   Zoom on Eamonn Coghlan   Coghlan, Eamonn.
Information on Brian Ó Domhnaill   Zoom on Brian Ó Domhnaill   Ó Domhnaill, Brian. Information on Paul Coghlan   Zoom on Paul Coghlan   Coghlan, Paul.
Information on Labhrás Ó Murchú   Zoom on Labhrás Ó Murchú   Ó Murchú, Labhrás. Information on Michael Comiskey   Zoom on Michael Comiskey   Comiskey, Michael.
Information on Darragh O'Brien   Zoom on Darragh O'Brien   O'Brien, Darragh. Information on Martin Conway   Zoom on Martin Conway   Conway, Martin.
Information on Ned O'Sullivan   Zoom on Ned O'Sullivan   O'Sullivan, Ned. Information on Jim D'Arcy   Zoom on Jim D'Arcy   D'Arcy, Jim.
Information on Jim Walsh   Zoom on Jim Walsh   Walsh, Jim. Information on Michael D'Arcy   Zoom on Michael D'Arcy   D'Arcy, Michael.
Information on Diarmuid Wilson   Zoom on Diarmuid Wilson   Wilson, Diarmuid. Information on John Gilroy   Zoom on John Gilroy   Gilroy, John.
  Information on Aideen Hayden   Zoom on Aideen Hayden   Hayden, Aideen.
  Information on Imelda Henry   Zoom on Imelda Henry   Henry, Imelda.
  Information on Lorraine Higgins   Zoom on Lorraine Higgins   Higgins, Lorraine.
  Information on Cáit Keane   Zoom on Cáit Keane   Keane, Cáit.
  Information on Marie Moloney   Zoom on Marie Moloney   Moloney, Marie.
  Information on Mary Moran   Zoom on Mary Moran   Moran, Mary.
  Information on Tony Mulcahy   Zoom on Tony Mulcahy   Mulcahy, Tony.
  Information on Michael Mullins   Zoom on Michael Mullins   Mullins, Michael.
  Information on Hildegarde Naughton   Zoom on Hildegarde Naughton   Naughton, Hildegarde.
  Information on Catherine Noone   Zoom on Catherine Noone   Noone, Catherine.
  Information on Marie-Louise O'Donnell   Zoom on Marie-Louise O'Donnell   O'Donnell, Marie-Louise.
  Information on Susan O'Keeffe   Zoom on Susan O'Keeffe   O'Keeffe, Susan.
  Information on Pat O'Neill   Zoom on Pat O'Neill   O'Neill, Pat.
  Information on Jillian van Turnhout   Zoom on Jillian van Turnhout   van Turnhout, Jillian.
  Information on Katherine Zappone   Zoom on Katherine Zappone   Zappone, Katherine.


Tellers: Tá, Senators Ned O'Sullivan and Diarmuid Wilson; Níl, Senators Paul Coghlan and Aideen Hayden.

Amendment declared lost.

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke As it is now after 6.10 p.m., I am required to put the following question in accordance with the Order of the Seanad of this day: "That the Bill is hereby received for final consideration and that the Bill is hereby passed."

Question put:

The Seanad divided: Tá, 29; Níl, 11.

Níl
Information on Ivana Bacik   Zoom on Ivana Bacik   Bacik, Ivana. Information on Sean D. Barrett   Zoom on Sean D. Barrett   Barrett, Sean D.
Information on Terry Brennan   Zoom on Terry Brennan   Brennan, Terry. Information on Thomas Byrne   Zoom on Thomas Byrne   Byrne, Thomas.
Information on Colm Burke   Zoom on Colm Burke   Burke, Colm. Information on Paschal Mooney   Zoom on Paschal Mooney   Mooney, Paschal.
Information on Deirdre Clune   Zoom on Deirdre Clune   Clune, Deirdre. Information on Rónán Mullen   Zoom on Rónán Mullen   Mullen, Rónán.
Information on Eamonn Coghlan   Zoom on Eamonn Coghlan   Coghlan, Eamonn. Information on David P.B. Norris   Zoom on David P.B. Norris   Norris, David.
Information on Paul Coghlan   Zoom on Paul Coghlan   Coghlan, Paul. Information on Brian Ó Domhnaill   Zoom on Brian Ó Domhnaill   Ó Domhnaill, Brian.
Information on Michael Comiskey   Zoom on Michael Comiskey   Comiskey, Michael. Information on Labhrás Ó Murchú   Zoom on Labhrás Ó Murchú   Ó Murchú, Labhrás.
Information on Martin Conway   Zoom on Martin Conway   Conway, Martin. Information on Darragh O'Brien   Zoom on Darragh O'Brien   O'Brien, Darragh.
Information on David Cullinane   Zoom on David Cullinane   Cullinane, David. Information on Ned O'Sullivan   Zoom on Ned O'Sullivan   O'Sullivan, Ned.
Information on Jim D'Arcy   Zoom on Jim D'Arcy   D'Arcy, Jim. Information on Jim Walsh   Zoom on Jim Walsh   Walsh, Jim.
Information on Michael D'Arcy   Zoom on Michael D'Arcy   D'Arcy, Michael. Information on Diarmuid Wilson   Zoom on Diarmuid Wilson   Wilson, Diarmuid.
Information on John Gilroy   Zoom on John Gilroy   Gilroy, John.  
Information on Aideen Hayden   Zoom on Aideen Hayden   Hayden, Aideen.  
Information on Imelda Henry   Zoom on Imelda Henry   Henry, Imelda.  
Information on Lorraine Higgins   Zoom on Lorraine Higgins   Higgins, Lorraine.  
Information on Cáit Keane   Zoom on Cáit Keane   Keane, Cáit.  
Information on Marie Moloney   Zoom on Marie Moloney   Moloney, Marie.  
Information on Mary Moran   Zoom on Mary Moran   Moran, Mary.  
Information on Tony Mulcahy   Zoom on Tony Mulcahy   Mulcahy, Tony.  
Information on Michael Mullins   Zoom on Michael Mullins   Mullins, Michael.  
Information on Hildegarde Naughton   Zoom on Hildegarde Naughton   Naughton, Hildegarde.  
Information on Catherine Noone   Zoom on Catherine Noone   Noone, Catherine.  
Information on Trevor Ó Clochartaigh   Zoom on Trevor Ó Clochartaigh   Ó Clochartaigh, Trevor.  
Information on Marie-Louise O'Donnell   Zoom on Marie-Louise O'Donnell   O'Donnell, Marie-Louise.  
Information on Susan O'Keeffe   Zoom on Susan O'Keeffe   O'Keeffe, Susan.  
Information on Pat O'Neill   Zoom on Pat O'Neill   O'Neill, Pat.  
Information on Kathryn Reilly   Zoom on Kathryn Reilly   Reilly, Kathryn.  
Information on Jillian van Turnhout   Zoom on Jillian van Turnhout   van Turnhout, Jillian.  
Information on Katherine Zappone   Zoom on Katherine Zappone   Zappone, Katherine.  


Tellers: Tá, Senators Paul Coghlan and Aideen Hayden; Níl, Senators Ned O'Sullivan and Diarmuid Wilson..

Question declared carried.

Child and Family Agency Bill 2013: Committee Stage

  Sections 1 to 7, inclusive, agreed to.

SECTION 8

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke Amendments Nos. 1 and 2 are related and may be discussed together by agreement.

Senator Jillian van Turnhout: Information on Jillian van Turnhout Zoom on Jillian van Turnhout I move amendment No. 1:

In page 12, line 16, after "the" to insert "educational welfare".

Amendment No. 1 corresponds to an amendment that was discussed in the Dáil and, as such, I do not propose to talk at length about it.  I studied the Official Report carefully as the Bill went through all Stages in the Dáil and remain convinced of the need to include a reference to "educational welfare". Under these proposals, three source agencies will come together under the new child and family agency, namely, the Family Support Agency, the relevant components of the Health Service Executive, and the National Educational Welfare Board. I accept that the provisions encompass a broad focus, but they do not adequately cover the scope of educational welfare. An explicit reference is required. We are all aware of the link between non-attendance at school and child welfare concerns. In fact, educational welfare services are a route for identifying other underlying child protection issues. An explicit focus on the issue of educational welfare would also ensure that all the source agencies have a clear understanding of their voice and their place within the new agency.

  I have brought forward this amendment in the knowledge that it was not accepted in the Dáil. I maintain, however, that educational welfare should be specifically included within the remit and functions of the new agency.

Minister for Children and Youth Affairs (Deputy Frances Fitzgerald): Information on Frances Fitzgerald Zoom on Frances Fitzgerald I agree that educational welfare is an important aspect of the work of the new agency. In this regard, I refer the Senator to section 72(2) of the Bill which states:

The functions vested in the National Educational Welfare Board by or under section 10(1) of the Education (Welfare) Act 2000 shall, on the establishment day, stand transferred to the Agency.

Regarding the functions of the National Educational Welfare Board, section 10(1) of the 2000 Act states: "The general function of the Board shall be to ensure that each child attends a recognised school or otherwise receives a certain minimum education..." Section 8(1)(a) of the Bill before us today specifies that a function of the new agency will be to perform the functions transferred to it under section 72. There cannot be, therefore, the slightest doubt that educational welfare is entirely captured within the functions and role of the agency by virtue of its assumption of the remit of the National Educational Welfare Board as set out in the relevant legislation.

  Moreover, the inclusion of the words "development" and welfare" in section 8(1)(b) effectively encompasses the issue of educational welfare. In fact, if we were to narrow the provision down by specifying "educational welfare", we might end up restricting the broad focus of the section, which is about the development, welfare and protection of children. That broad formulation is in line with the child care legislation. I made the point in the Dáil that educational welfare is also a function for teachers, schools, the National Educational Psychological Service and so on. In giving careful consideration to this amendment I was wary of any suggestion that educational welfare would be solely the remit of the new agency, because that is not the case. The provisions and functions set out in the Bill will not diminish in any way the role previously carried out by the National Educational Welfare Board, in conjunction with schools, under the Education (Welfare) Act 2000. All of those functions are being transferred to the new agency.

Senator Jillian van Turnhout: Information on Jillian van Turnhout Zoom on Jillian van Turnhout I do not propose to press the amendment.

  Amendment, by leave, withdrawn.

Senator Brian Ó Domhnaill: Information on Brian Ó Domhnaill Zoom on Brian Ó Domhnaill I move amendment No. 2:

In page 12, line 16, after "children" to insert "by facilitating all services to engage in prevention and early intervention practice".

  Amendment put and declared lost.

Senator Brian Ó Domhnaill: Information on Brian Ó Domhnaill Zoom on Brian Ó Domhnaill I move amendment No. 3:

In page 12, line 17, to delete "families" and substitute the following:
"all families and the role of parents or guardians therein as integral to the achievement of paragraph (b) above".

Deputy Frances Fitzgerald: Information on Frances Fitzgerald Zoom on Frances Fitzgerald I refer the Deputy to the following definition in section 2:

"family" means spouse, parent, grandparent, step-parent, child (including a step-child), grandchild, brother, sister, half-brother, half-sister, and any other person who, in the opinion of the Agency, has a bona fide interest in the child;"

It is a broad definition that encompasses a wide group of people who might have concerns about a child. The same applies to the definition of "couple" in the same section:

"couple" means—
(a) a married couple,

(b) civil partners within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010,

(c) a man and woman who are not married to each other but are cohabiting as husband and wife, or

(d) two persons of the same sex who are cohabiting in domestic circumstances comparable to that of a man and woman who are not married to each other but are cohabiting as husband and wife;

The definitions are designed to be broad, and accepting the amendment would detract from that.

  Amendment, by leave, withdrawn.

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke Amendment No. 4 in the names of Senator Jillian van Turnhout and others is out of order as it involves a potential charge on the Exchequer.

  Amendment No. 4 not moved.

Senator Brian Ó Domhnaill: Information on Brian Ó Domhnaill Zoom on Brian Ó Domhnaill I move amendment No. 5:

In page 13, line 12, to delete "and accountability" and substitute "accountability and consistency".

Deputy Frances Fitzgerald: Information on Frances Fitzgerald Zoom on Frances Fitzgerald The provision in section 41 for a performance framework will capture this concept of consistency. The important words "perform", "transparency" and "accountability" are written into the legislation. Consistency in regard to standards, which is absolutely essential, will be captured on an ongoing basis via the performance framework.

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

  Amendment declared lost.

  Question proposed: "That section 8 stand part of the Bill."

Senator Jillian van Turnhout: Information on Jillian van Turnhout Zoom on Jillian van Turnhout I put forward amendment No. 4 in error. What I had intended to propose, and which I may do on Report Stage, relates to subsection 8(4)(a). This subsection states that among the services not included within the provisions of the Bill are "psychological services associated with the provision of specialist mental health services to children". I spoke on Second Stage of my regret that the child and adolescent mental health services, CAMHS, are not being transferred during phase one. I understand why that is the case, but I have a major difficulty with the Bill explicitly ruling out psychological services associated with the provision of specialist mental health services to children. Why is this explicit exclusion contained in the Bill? Social workers - who, like CAMHS, come under the remit of the HSE - tell me that they are already experiencing huge difficulty in accessing these services. That difficulty will only be exacerbated when the social worker function and CAMHS are operating under the remit of different agencies.

Deputy Frances Fitzgerald: Information on Frances Fitzgerald Zoom on Frances Fitzgerald Section 8 deals with the services the agency shall directly provide. While it will have psychologists working within it, the agency will not in itself provide specialist mental health services, which will remain under CAMHS. The establishment of the new agency is a major task of public sector reform, involving the bringing together of three existing agencies and the transfer of 4,000 staff. The task force did recommend that specialist mental health services be included in the remit of the new agency, but we have to start at a particular point. It has been a wide-ranging and demanding job to bring together the three agencies. I have already expressed my thanks to the unions, employers and everybody else involved in those negotiations. For such an enormous job, we have had a huge level of co-operation.

  In terms of transferring other services, the same discussion and negotiation will have to be undertaken, involving other Ministries.  Certainly, I wish to have discussions about effective links between the CAMH services and the services in the agency, but at this point it is not intended to transfer specialist mental health. It is not within the remit of the agency's direct provision. It is a separate service at present, but we have agreement on the transfer of certain numbers of psychologists who will provide basic psychological services.

  However, I could not agree with the Senator more about the links to CAMH services. I will have further discussions with the Minister of State, Deputy Kathleen Lynch, regarding the accessibility of those services, particularly in respect of 16 to 18 year olds. There is a huge need for really strong inter-agency work between CAMHS and the services that will be provided by the agency. It is absolutely critical. Every day I see the need for that type of collaboration, particularly regarding the area of sexual abuse. Some of the CAMH services say it does not come under their remit, but I do not accept that. There is a need for further discussion and I intend to have that.

Senator Jillian van Turnhout: Information on Jillian van Turnhout Zoom on Jillian van Turnhout I appreciate the Minister's reply. My difficulty is that it is being specifically excluded. I understand that this outlines the functions of the agency, but my difficulty is that we are excluding it. I raise it now because I might table an amendment on Report Stage.

Deputy Frances Fitzgerald: Information on Frances Fitzgerald Zoom on Frances Fitzgerald To clarify, they are not ruled out, but the Bill must be clear about which services will transfer. This is the only way there can be that clarity in terms of accountability.

  Question put and agreed to.

NEW SECTION

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke Amendments Nos. 6 and 7 are alternatives and may be discussed together. Is that agreed? Agreed.

Senator Jillian van Turnhout: Information on Jillian van Turnhout Zoom on Jillian van Turnhout I move amendment No. 6:

In page 13, to delete lines 30 to 32 and substitute the following:

“9. (1) The Agency shall, when making decisions in relation to the performance of its functions under section 8(1)(a), (b) or (c), in respect of an individual child or family, regard the best interests of the child as a primary consideration.”.

This is my most substantive amendment. The "best interests of the child in all matters" versus "the best interests of the child as the primary consideration" is what we are discussing here. The enumeration of the best interests of the child requirement in respect of the new agency's decision making processes and in the performance of its various functions is a major and welcome development in implementing a children's rights approach to public sector reform. However, I believe the current manifestation of the best interests of the child principle, in section 9(1), as "the best interests of the child in all matters" falls short of the standards set in Article 3.1 of the UN Convention on the Rights of the Child which states: "In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."

  I was interested in the Minister's response when this amendment was tabled by Deputy Ó Caoláin on Committee Stage in the Dáil. I understand the point she made about scenarios where a specific child might not be the subject of a service provided or where the work of the agency is not directly child related, despite there being a child involved. She gave the examples of domestic or sexual violence and marriage guidance counselling. I would be inclined to agree with the Minister's interpretation were the disputed wording "the best interests of the child shall be the paramount consideration", which is, correctly, the standard applied in Irish legislation governing adoption, custody, access and guardianship, section 9(2) of this Bill and Article 21 of the UN Convention on the Rights of the Child, since children are at the centre of these cases. That is why it is the paramount consideration.

  The formulation I have put forward is "a primary consideration". I respectfully disagree with the Minister's interpretation that it could narrow the breadth or scope of the provision. I believe it fully captures the scenarios she outlined to Deputy Ó Caoláin and the essence of the best interests of the child principle, as intended by the UN Convention on the Rights of the Child in Article 3. The best interests of the child principle is interpretative in character, but we are not without guidance. In 2013, prompted by a considerable degree of inconsistency in the interpretation and application of the best interests of the child principle by the state parties to the convention, the UN Committee on the Rights of the Child issued general comment No. 14 on the right of the child to have his or her best interests taken as a primary consideration. The committee elaborated a threefold meaning which I ask the Minister to consider in the context of the scenarios and examples which she outlined to Deputy Ó Caoláin.

  The best interests principle, and I thank the Children's Rights Alliance for synopsising the general comment for me so adeptly, is, first, a substantive right. It is the right of the child to have his or her best interests assessed and taken as a primary consideration when different interests are being considered in order to reach a decision on the issue at stake and guarantee that this right will be implemented whenever a decision is to be made concerning a child, a group of identified or unidentified children or children in general. Article 3.1 creates an intrinsic obligation for states and is directly applicable, self executing and can be invoked before a court.

  Second, it is a fundamental interpretative legal principle. If a legal provision is open to more than one interpretation, the interpretation which most effectively serves the child's best interests should be chosen. The rights enshrined in the convention and its protocols provide this framework for interpretation. Third, it is a rule of procedure. Whenever a decision is to be made that will affect a specific child, an individual child, an individual group of children or children in general, the decision making process must include an evaluation of the possible impact, positive or negative, of the decision on the child or children concerned. Assessing and determining the best interests of the child requires procedural guarantees. Furthermore, the justification of a decision must show that the right has been explicitly taken into account. In this regard, state parties shall explain how the right has been respected in the decision, that is, what has been considered to be in the child's best interests, what criteria it is based on and how the child's interests have been weighed against other considerations, be they broad issues of policy or individual cases.

  In conclusion, there is the same intention in the respective wording of the proposals put forward here. In both cases, the obligation is that the best interests of the child must explicitly be taken into account, considered and balanced, in as far as the child is affected and impacted by the situation in question. However, the advantage of my proposal is that the language is consistent with our obligations as a state party to the UN Convention on the Rights of the Child. As it has had the benefit of interpretative guidance by the UN Committee on the Rights of the Child, it would offer greater clarity to agency staff on how the principle should be interpreted in practice, thus leading to better outcomes for children. That is the reason I propose that we use the words "a primary consideration".

Senator Diarmuid Wilson: Information on Diarmuid Wilson Zoom on Diarmuid Wilson I welcome the Minister and wish her well in the excellent work she is doing in the Department. I am speaking on behalf of my colleague, Senator Leyden, who is unfortunately obliged to attend another meeting and cannot be present. I support Senator van Turnhout's amendment. We welcome the explicit inclusion of the best interests of the child principle in the Bill, but, as Senator van Turnhout said, it could be strengthened by including the wording of the UN Convention on the Rights of the Child.

Deputy Frances Fitzgerald: Information on Frances Fitzgerald Zoom on Frances Fitzgerald In section 9(2) the issue of paramountcy is acknowledged and restated. It provides that in the performance of its functions in respect of an individual child under the Child Care Act 1991 or the Adoption Act 2010 the agency shall regard the best interests of the child as the paramount consideration. It takes what is already in the Child Care Act, builds on it and includes it in this legislation. The Senators will agree that the provision could not be stronger. It reiterates the child-centred approach in matters of welfare and protection where there is a distinction to be made. Those provisions are appropriate, proportional and can be given real effect in the agency. It is important to include them here.

  The Senator picked up on the point about where there might be almost a conflict of interest or if there was a situation where children were not involved but somehow the agency was involved in delivering services to a family where there were no children. We are anxious to keep a very broad scope for the best interests principle, but in terms of the breadth of scope of services, the Senator has given one approach on the legal interpretation but my understanding of the likely legal interpretation of "primary" is a heavy weighting in favour of the best interests of an individual child. I do not accept that the agency, in making decisions relating to the breadth of its functions, could or should be given a mandate which would require a degree of interpretation, without guidance in statute law, as to what other primary interests there might be and how they might be balanced.  I do not accept that the agency, in making decisions relating to the breadth of its functions, could or should be given a mandate which would require a degree of interpretation without guidance in statute law as to what other primary interests there might be and how they might be balanced. Such interpretations are within the scope of judicial function and could not reasonably be expected to be balanced and assessed by every front-line worker. They might be particularly fraught in specific areas where parental rights and other fundamental rights contained in the Constitution might be relevant.

  When we were discussing the wording of the children's rights referendum, I pointed out that when the new section becomes fully legal, it will be interpreted in the context of the Constitution as a whole. In other words, the rights of the child will have to be balanced with other rights provided for in the Constitution, such as the rights of families and parents. In the same way, this legislation provides that the agency must "have regard to the best interests of the child". I refer the Senator to sections 9(1), 9(2) and 9(4) of the Bill. Section 9(4) is about hearing the views of the child "where that child is capable of forming and expressing his or her own view". I suggest that sections 9(1), 9(2) and 9(4) give a statutory underpinning to the belief that a very strong weight should apply to ascertaining the best interests and views of the child. This section is quite strongly worded. It will protect the best interests of the child. I accept the Senator's point about a particular formulation. As she knows, the UN guarantee concerns the best interests of the child as a primary consideration. I think I am right to say that relates primarily to legal proceedings. Perhaps it is broader than that.

Senator Jillian van Turnhout: Information on Jillian van Turnhout Zoom on Jillian van Turnhout No. The UN makes a clear distinction. In Ireland, we use the term "paramount consideration" in our legislation on adoption, custody, access and guardianship. Nobody has any dispute about that. As I have said, Article 3 of the UN Convention on the Rights of the Child articulates that "the best interests of the child shall be a primary consideration" in other types of areas and issues that are encountered when one is dealing with a child. It is right that the issues listed in section 9(2) of this Bill are said to be "the paramount consideration". I am trying to bring the language used in section 9(1) into line with the language used in section 9(2). I suggest that the phrase "as a primary consideration", rather than "as the primary consideration", should be used in order to ensure the child does not get lost in this equation.

  While I am not going to press this amendment today, I would like the Minister to examine general comment No. 14, which was issued by the United Nations Committee on the Rights of the Child earlier this year. It is really interesting. The UN committee is trying to ensure there is consistency of application in each of the state parties and, specifically, that there is a clear distinction between "the paramount consideration" and "a primary consideration". I am trying to ensure the language used in this Bill, which will be absolutely fantastic for Ireland, is consistent with the UN Convention on the Rights of the Child. As I have said, I do not intend to press the amendment I have tabled along with my group colleagues today. I ask the Minister to look at general comment No. 14.

Deputy Frances Fitzgerald: Information on Frances Fitzgerald Zoom on Frances Fitzgerald I will certainly have a look at that and see quite how it fits with the formulation we have used in this legislation. I repeat that the phraseology used in sections 9(1) of the Bill, which refers to having "regard to the best interests of the child in all matters", is quite strong. I will examine the comment mentioned by the Senator to see what it says and come back to her on the matter on Report Stage.

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke Is amendment No. 6 being withdrawn?

Senator Jillian van Turnhout: Information on Jillian van Turnhout Zoom on Jillian van Turnhout Yes. I intend to return to the matter on Report Stage.

  Amendment, by leave, withdrawn.

SECTION 9

  Amendment No. 7 not moved.

Senator Diarmuid Wilson: Information on Diarmuid Wilson Zoom on Diarmuid Wilson I move amendment No. 8:

In page 13, line 35, after "2010," to insert "whether in proceedings before a court or otherwise,".

Deputy Frances Fitzgerald: Information on Frances Fitzgerald Zoom on Frances Fitzgerald I am satisfied that the provision I have made in section 9 has the intended effect, which is to create a child-centred approach to decision-making while restating the specific requirements for paramountcy in certain specific processes. I do not think there is a need to restate in this Bill the existing provisions relating to proceedings before a court or the Adoption Authority. Those provisions are in place already. The Child Care Acts and the Adoption Act 2010 already require the best interest principle to be upheld by the agency. I remind the House that section 3 of the Child Care Act 1991 is explicit with regard to the application of best interests. It covers any action of the agency in the context of fulfilling its functions under that Act. Arrangements in respect of the adoption of a child are covered in section 6 of that Act. The consideration of best interests in court-related proceedings is obviously a matter for the relevant court or the relevant decision-making body.

  Amendment, by leave, withdrawn.

Senator Diarmuid Wilson: Information on Diarmuid Wilson Zoom on Diarmuid Wilson I move amendment No. 9:

In page 13, lines 38 and 39, to delete "section 8(1)(a), (b) or (c), ensure that consideration is given to the views of children" and substitute the following:
"section 8(1) ensure that due consideration is given to the views of children as part of any consultation processes undertaken".

Deputy Frances Fitzgerald: Information on Frances Fitzgerald Zoom on Frances Fitzgerald I think the same response applies to this amendment.

  Amendment, by leave, withdrawn.

  Amendment No. 10 not moved.

  Section 9 agreed to.

  Sections 10 to 18, inclusive, agreed to.

SECTION 19

  Question proposed: "That section 19 stand part of the Bill."

Senator Jillian van Turnhout: Information on Jillian van Turnhout Zoom on Jillian van Turnhout I fully endorse the Minister's decision not to take a prescriptive approach to the appointment of board members. Such an approach is not articulated in this Bill. I did not have a chance to make this point on Second Stage in the time available to me. It is important that the Minister has taken the right approach. I hope we can consider the seven principles of public life, which are often referred to as the Nolan principles, in this country at some stage. The principles in question, which office-holders should have, are selflessness, integrity, objectivity, accountability, openness, honesty and leadership. When we are creating agencies in future legislation, I hope we will provide for a system whereby a panel can be proposed to the Minister. I am not suggesting that this should be done in this Bill. An examination of how boards are appointed in Ireland is needed. There is a better way to decide on the membership of the boards of agencies of this nature. I support the Minister's decision not to take a such prescriptive approach in this instance. It would have been too easy to say there should be one member from a certain body and another member from another body, etc. As we all know, the essential governance skills that are needed by boards can be lost when efforts are made to fill places in such circumstances.

  Question put and agreed to.

  Sections 20 to 26, inclusive, agreed to.

SECTION 27

  Question proposed: "That section 27 stand part of the Bill."

Senator Jillian van Turnhout: Information on Jillian van Turnhout Zoom on Jillian van Turnhout I would like to make a brief comment on the remuneration and expenses of the members of the boards and committees. Can the Minister advise us whether there are any current payments to board members? If there will be payments to board members in the case of the new agency, will details of those payments be published? If the Minister cannot answer that question today, perhaps she will come back to the matter on Report Stage. Given that we have been talking about transparency, it would be good for us to know whether payments are to be made. This section of the Bill sets out how payments will be handled, but it does not say whether they will be published in a way that will enable the public to know about them.

Deputy Frances Fitzgerald: Information on Frances Fitzgerald Zoom on Frances Fitzgerald It will be possible for that to be done by means of ministerial direction. Given that the Bill contains many good governance provisions, I expect that there will be transparency in this regard as well. As the Senator knows, the board is currently constituted as the board of the Family Support Agency. A certain level of remuneration is paid in the usual way in that context. I will provide the details sought by the Senator on Report Stage.

Senator Aideen Hayden: Information on Aideen Hayden Zoom on Aideen Hayden I understand that the code of conduct for semi-State and State agencies requires the publication of an annual report in which details of the remuneration, expenses or other payments received by all board members in the course of their membership of the board must be set out.

  Question put and agreed to.

Sections 28 to 38, inclusive, agreed to.

SECTION 39

Senator Jillian van Turnhout: Information on Jillian van Turnhout Zoom on Jillian van Turnhout I move amendment No. 11:

In page 31, between lines 4 and 5, to insert the following:

“(3) The Agency must advise the Board, on an annual basis, of gifts accepted that are above the value of €500.”.

Section 39 states that the agency shall not accept a gift if the trusts or conditions attaching to it would be inconsistent with the functions or the obligations of the agency under this Act or any other enactment. However, there is no provision to cover the ethos or those type of issues. For example, if a drinks company decided it was willing to sponsor a certain component part of the agency, what provision ensures the board will have oversight of such a proposal? My colleagues and I did not wish our amendment to be too onerous. The limit for officials is €127 so I tried to include a limit. I have included the provision that the agency must advise the board every year of gifts accepted above the value of €500. In my view there needs to be some form of accountability for any gifts accepted by the agency. There needs to be some way of collating information and informing the board that these gifts have been accepted. I had this idea before the events of the past week but the past week has probably heightened my concern.

  As the Minister said, this Bill tries to ensure good governance but there is a need to insert a provision about transparent information about the acceptance of gifts. I am not fixed on the value of the gifts. I was trying to find a figure that would not be too onerous and I thought that €500 was a fair figure.

Deputy Frances Fitzgerald: Information on Frances Fitzgerald Zoom on Frances Fitzgerald Section 39 deals with this matter to a certain degree. Part 5 provides for matters relating to standards of integrity, codes of conduct and gifts. Section 36 provides that persons, including board members, shall maintain proper standards of integrity, conduct and concern for the public interest.

  I understand the attention as the Senator has described it but references to the agency in this context are to the board of the agency. To accept this amendment would mean that the board is advising itself of gifts accepted which exceed €500 in value. I suggest the Minister could give a direction in this regard which would be published in the annual report and in Iris Oifigiúil. I will take the spirit of the Senator's amendment and address it in that manner. This relates to the general issue of board membership which may be more appropriately addressed under the standards in public office legislation.

Senator Jillian van Turnhout: Information on Jillian van Turnhout Zoom on Jillian van Turnhout I ask the Minister to clarify a point. I found the Bill somewhat confusing in that this section 39 refers to the board of the agency but the preamble to the Bill defines the agency and the board of the agency. The agency means the child and family agency established under section 7 of the Bill. The board is also defined. I ask why the definitions are not more precise. In a future argument, there could be a difference of opinion as to whether advice was given by the board or by the agency. I am slightly confused on this point.

Deputy Frances Fitzgerald: Information on Frances Fitzgerald Zoom on Frances Fitzgerald The board is the governing body of the agency with the authority, in the name of the agency, to perform the functions of the agency. When we refer to "agency", it is a reference to the board of the agency under section 21(1). When we refer to it in the section relating to gifts, it is a reference to the board of the agency.

Senator Jillian van Turnhout: Information on Jillian van Turnhout Zoom on Jillian van Turnhout I will reserve the right to table the amendment on Report Stage. I would like to look at it in greater detail. I am concerned about the differentiation.

  Amendment, by leave, withdrawn.

  Section 39 agreed to.

  Sections 40 to 46, inclusive, agreed to.

SECTION 47

  Amendment No. 12 not moved.

Senator Jillian van Turnhout: Information on Jillian van Turnhout Zoom on Jillian van Turnhout I move amendment No. 13:

In page 35, lines 8 and 9, to delete “judgment in a particular case in the performance by the Agency of its functions” and substitute the following:

“judgement in a particular case in the performance by the Agency of its functions and must be in accordance with section 8 and section 9".

I refer to the word "judgment" in this section. This spelling of the word without the "e" very often means a court interpretation. I think it is very important that the word is spelled with the "e" because the Minister could take professional direction from more than one source. I believe this is a typographical error in the Bill but I ask the Minister to enlighten me otherwise. I think the "e" should be included in the spelling of the word.

  I also wish to add "and must be in accordance with section 8 and section 9". I do not doubt the Minister's credentials to ensure the agency will act within its functions but it is very important that this is stressed. I have not pressed this type of amendment in other areas as did colleagues from other parties who are Members of the other House. However, it is critical that it be included.

Deputy Frances Fitzgerald: Information on Frances Fitzgerald Zoom on Frances Fitzgerald I am informed that the word "judgment" can be spelled either way and that in legal terms it is generally spelled with the "e" . That is the information I have been given. I think the Senator disagrees. In my view this is an unnecessary amendment as it would not be possible for the Minister to give a direction that is not consistent with the agency's function. The agency can only act within the parameters set out in section 8. It is also inconceivable that the Minister of the day would issue a direction that goes against the best interest principle.

Senator Jillian van Turnhout: Information on Jillian van Turnhout Zoom on Jillian van Turnhout The word "judgment" in a court ruling is normally spelled without the "e" whereas when spelled with the "e" it can mean other types of professional direction. I have asked different legal people and they have advised me about the interpretation. I will bring this amendment back on Report Stage and perhaps the Minister can seek advice. If a professional judgment were given, somebody could say that because it was not a court ruling, the Minister would not be bound to accept it. I have been caught before in other areas because of this elusive "e".

Deputy Frances Fitzgerald: Information on Frances Fitzgerald Zoom on Frances Fitzgerald I will give a final clarification on Report Stage. I am advised that legal judgments tend to use the spelling of the word with an "e" but that the spellings are interchangeable.

  Amendment, by leave, withdrawn.

  Section 47 agreed to.

  Sections 48 to 54, inclusive, agreed to.

  SECTION 55

Senator Jillian van Turnhout: Information on Jillian van Turnhout Zoom on Jillian van Turnhout I move amendment No. 14:

In page 39, line 39, after “of” where it firstly occurs to insert “the Board and”.

This amendment relates to consultants and to advisers in particular. I have a concern about the appointment of advisers. This may be another area where the Minister will say that the agency means the board. My difficulty is that the preamble to the Bill stateS the definitions of "agency" and "board". I am worried about how people will interpret this Bill. My difficulty is this triangle, as I kept imagining it, of the board, the agency and the Minister or Department. It is a case of where the different responsibilities fall.  I was seeking to ensure that we would not cut out the board where it plays an important role. For example, advisers should not be appointed to the new agency without consulting the board. I appreciate that the Ministers for Public Expenditure and Reform and Children and Youth Affairs need to be consulted. Who tables the proposal? Having read the Bill, I believed the chief executive would do so on behalf of the agency. Would the board be clearly informed of what was happening? This relates to my point on gifts. The Minister stated that this provision meant the board, but it actually mentions the agency, not the board.

Deputy Frances Fitzgerald: Information on Frances Fitzgerald Zoom on Frances Fitzgerald Section 21(1) reads: "The Board shall be the governing body of the Agency with authority, in the name of the Agency, to perform the functions of the Agency." This is clear and unequivocal. I am satisfied that references to the agency in this context are to its board. Therefore, it is not necessary to insert a reference to the board where there is already a reference to the agency. When this subsection is read with the rest of section 21, it is clear that the board has the power, in the name of the agency, to perform the agency's functions.

Senator Jillian van Turnhout: Information on Jillian van Turnhout Zoom on Jillian van Turnhout I am reading section 21. It contains nothing that makes it absolute that the board must be informed about gifts or appointments of consultants and advisers. It refers to overseeing the development of a corporate strategy in respect of major plans of action, risk policy, annual budgets, business plans, setting performance objectives, monitoring corporate performance, overseeing major capital expenditure, ensuring high standards of governance, establishing arrangements for the management and performance of the chief executive and ensuring expenditure limits. I am concerned that the specific issues that I have raised might be hidden within a massive budget handed to the board. The board should be explicitly informed. Section 21 does not assure me in that regard, given the fact that the issues of gifts and appointments of consultants and advisers have been clearly articulated in the Bill. There is a role for the board, but it is not contained within section 21.

Deputy Frances Fitzgerald: Information on Frances Fitzgerald Zoom on Frances Fitzgerald I refer the Senator to subsection (f), which reads: "ensure, having regard to net expenditure limits determined under section 45, the integrity of the Agency's accounting and financial reporting systems [surely this includes the reporting of key decisions taken in the course of the agency's work], including the independent audit, and that appropriate systems of control are in place, in particular, systems for risk management, financial and operational control, and compliance with the law and relevant standards." This subsection encompasses the Senator's points. The board can delegate to the CEO any of the agency's functions with the exception of the functions of the board under subsection (2).

  I also refer the Senator to subsection (d), which reads: "promote high standards of corporate governance with particular regard to a code of conduct issued under section 37." I refer the Senator to the direction that the Minister can give to the board if particular issues arise. The matters could then be referred to the CEO.

  The board is the governing body of the agency. This Bill goes further than a great deal of legislation in terms of governance, performance management and reporting arrangements to the Minister. The system is clearly spelled out in a way that has not been seen in other legislation. It is strong from a governance point of view. The issues raised by the Senator are covered by the provisions on the board's role, which can be supplemented by directions from the Minister where necessary.

Senator Aideen Hayden: Information on Aideen Hayden Zoom on Aideen Hayden I echo one of the Minister's points, in that this legislation goes further than any other legislation I have seen in setting out prescriptive procedures for an agency's operation, right down to requiring it to put in place performance frameworks and corporate plans and to publish the approved plans and annual performance statements. It also provides for a determination by the Minister of net expenditure limits for the agency, a business plan, etc. These measures are not usual in any legislation that I have seen for a Government or semi-State agency.

  A number of the Bill's components other than those mentioned by the Minister would require the kind of information in question to be given to and approved by the board, assuming that everything was in line with the expenditure limits set for the agency by the Minister. Even the board would not have the right to recruit consultants whenever it saw fit. It requires the Minister to consent to the engagement of consultants.

  I agree with almost 90% of everything Senator van Turnhout says, but the agency is a corporate entity that operates through its board of directors. In accordance with ministerial consents, corporate plans, business plans and so forth, the board devolves powers to the organisation's CEO and employees. The agency is well protected by the structures set out in the Bill.

Senator Jillian van Turnhout: Information on Jillian van Turnhout Zoom on Jillian van Turnhout The Bill sets out excellent governance but my difficulty about the consultants and advisers is that the expenditure controls only take effect after the event. The board will hear after a consultant or adviser has been appointed. The board will not consider an appointment prior to it being made. I am trying to insert a control whereby the board would be informed of a proposal to the Minister to appoint a consultant or adviser.

  I will re-examine the amendments, but I am concerned that there be clarity. Even this debate adds clarity.

Deputy Frances Fitzgerald: Information on Frances Fitzgerald Zoom on Frances Fitzgerald Something that the agency must do as soon as it is appointed is devise a code of governance. The Minister of the day also has the power to issue guidelines, not just directions. There is no reason that the issues raised cannot be addressed within a code of governance or ministerial guidelines. The mechanisms mentioned by Senator Hayden are in place to deal with such issues.

  The appointment of outside consultants is something that a CEO would recommend to a board for the board's decision. This specific issue would never be mentioned in legislation.

Senator Jillian van Turnhout: Information on Jillian van Turnhout Zoom on Jillian van Turnhout I am more concerned about advisers than I am about consultants.

Deputy Frances Fitzgerald: Information on Frances Fitzgerald Zoom on Frances Fitzgerald Under which section?

Senator Jillian van Turnhout: Information on Jillian van Turnhout Zoom on Jillian van Turnhout Advisers could be seen as substitutes for staff positions. I understand why a CEO might designate a consultant, but I have an issue with the question of advisers.

Deputy Frances Fitzgerald: Information on Frances Fitzgerald Zoom on Frances Fitzgerald The framework will allow for proper supervision, governance and decision making in respect of these issues.

  Amendment, by leave, withdrawn.

  Section 55 agreed to.

SECTION 56

  Question proposed: "That section 56 stand part of the Bill."

Senator Jillian van Turnhout: Information on Jillian van Turnhout Zoom on Jillian van Turnhout This section concerns arrangements with service providers. We have unfortunately heard a lot in recent days about the importance of having good governance of service providers. What is outlined in the Bill in this respect is really good. The agency will have a budget of approximately €545 million, some €100 million of which will go to outsourcing, so we are talking about considerable revenue. I am talking in broad figures because there are no clear plans or procedures for how this will be outsourced. What outcomes and services are we seeking to put in place? I am concerned that I have not seen any plans, even though I have spoken with organisations that are providing such services.

  At the briefing provided by the Minister and her officials before the Bill came to the House, I raised the issue of having a commitment. We often get into the accounting and auditing aspects of Bills, which people rightly have to fulfil, yet we do not state the basics about Children First guidance. As we cannot insert it into the legislation, I am asking the Minister to give a commitment that in any of the contracts we provide, we will ask outsourcing organisations to abide by the Children First guidance, as all the agency's staff will be doing.

  At the briefing I was advised that it was not possible to have multi-annual State funding. In fact, however, the Department of the Environment, Community and Local Government has a multi-annual funding scheme. That is part of the White Paper on a framework for supporting voluntary activity and for developing the relationship between the State and the community and voluntary sector. Chapter 5 refers to a multi-annual approach being taken to fund the community and voluntary sector. It states that multi-annual funding allows for a more rational approach to planning service delivery and processing funding applications. Adopting this approach does not of itself involve any increase in expenditure. The Government has decided that multi-annual funding commitments should, in appropriate cases, be made available by all funding agencies to organisations providing services or undertaking development activities that are agreed priorities, with the budget for each specific year to which the agreement applies to be reviewed in light of available resources, and taking into account the legal position that the Dáil votes public moneys on a annual basis.

  As we know, the Dáil determines the level of taxation and expenditure in any particular year. This may involve decisions to reduce expenditure in particular areas. Multi-annual funding commitments in specific areas will be complemented by explicit understandings on service standards, performance indicators, evaluation and review. For example, in the design of the scheme for national organisations, multi-annual funding has been provided as a provisional commitment. The contracts with organisations only specify the amount in year one, with the remainder based on the financial situation pertaining at a particular time. Such an arrangement would free up the agency to enter a multi-annual contract with organisations so that service level agreements would not have to be re-negotiated each year.

  Other Government Departments have found a way to do multi-annual funding. We must hold organisations to account for service standards, performance indicators, evaluations and reviews. That is why I am extremely concerned that no plan has been published on what the new agency will outsource, what needs it will try to meet, and the gaps it cannot provide itself. What provisions will be outsourced? All too often, we build up relationships with such organisations rather than stating what services the State will provide. I believe the State should provide the majority of services but where it cannot do so, it should state which services it requires. In addition, it should publish them and put them out to tender. We should have some system of multi-annual funding once people meet the performance indicators and evaluations, and other safeguards are put in place. That would be a better way of doing it.

Deputy Frances Fitzgerald: Information on Frances Fitzgerald Zoom on Frances Fitzgerald I will take the last point first concerning which services get outsourced and which will be delivered by the agency itself. That is precisely the benefit of having an agency that is pulling together all the services for children, as well as bringing together the relevant agencies dealing with family support, education and welfare, child and family services, and child protection services. The benefit is that one now has a dedicated management and leadership examining what services are under their umbrella. They will examine it through a national rather than a local lens because we have not had such a perspective before. For example, there was no national approach to inspection of pre-schools and no national standards were set to the necessary degree. That also applies to many other areas. This is the big advantage of taking a national approach, albeit with some local variation in service delivery depending on whatever is needed.

  There will now be an agency with a dedicated management examining this area. One of the first tasks that Mr. Gordon Jeyes has been involved in is to examine the relationship between providers. Some €100 million of the €500 million plus goes to other providers who complement State services. The Senator is right to say that the system requires ongoing review because one cannot continue giving money to the same providers. As we have seen in recent times, such a system needs ongoing audit and assessment, which is exactly what Mr. Jeyes has done. It also needs an alignment between the money the State provides to voluntary organisations, including NGOs, and the State's priorities.

  The State may be dealing with 20,000 child protection referrals but some of those will need to be referred to family support services. The State must ensure that the agencies it is funding are willing to provide such family support if the child protection workers themselves are in a position to do so. I take the Senator's point concerning the review of the relationship with providers. I can assure her that is part and parcel of what is happening at the moment. There are also governance issues, as we have seen across many sectors and not just concerning services for children.

  The Senator also mentioned service providers' adherence to legislative standards, including the Children First guidelines. She is correct to say that if one is providing a residential service one must guarantee that it adheres to Children First principles. Yesterday, I attended the launch of a report by Dr. Helen Buckley on the five abuse inquiries that have taken place. She examined how best we should respond to this matter and her report is a very useful piece of work. As well as Dr. Buckley's work, we can see from HIQA reports that there are inconsistencies. Better internal mechanisms are required to manage such matters. If HIQA examines what is happening, one is more likely to get that kind of consistency from providers as well, including HSE providers. As we know, HIQA will now examine the HSE's child protection services. A combination of objective outside services going in, plus better internal controls and management by the HSE is required. One must demand that providers adhere to those standards in conformance with current legislation, and that has to be checked on an ongoing basis. I agree with the Senator that that can be done.

  Wherever multi-annual funding is feasible, I have no doubt the agency will try to do it. It makes more sense but, given our current budgetary arrangements, it is not always the easiest thing to do. We must give some certainty to NGOs, however, which goes beyond a year where possible.

Senator Jillian van Turnhout: Information on Jillian van Turnhout Zoom on Jillian van Turnhout I thank the Minister for her reply. My main point concerned the Children First guidance standards. Section 56(13)(b) states that the Minister may prescribe requirements in respect of the provision of those services by service providers. Having looked at several such contracts, we seem to be obsessed with accounts, financial requirements and indicators, although I can understand why.  We sometimes forget to lay down the standards of the State. I ask that in laying down these standards we remind service providers that they must uphold standards and not only where they are in place by way of legislation.

  Question put and agreed to.

  Section 57 agreed to.

SECTION 58

  Question proposed: "That section 58 stand part of the Bill."

Senator Jillian van Turnhout: Information on Jillian van Turnhout Zoom on Jillian van Turnhout I raised the issue of special care on Second Stage. I have read the Bill and can find nothing therein in this regard that can be changed per se. However, I am extremely concerned about special care placements. The Minister kindly responded to my concerns in this regard on Second Stage. I would like to read into the record the following for the benefit of my colleagues. Under the special care order of the Child Care (Amendment) Act 2011, only children and young people aged from 11 to 17 with serious emotional and behavioural difficulties that put them “at a real and substantive risk to his or her health, safety, development or welfare” and who are unlikely to receive special care or protection “unless the court makes such an order” can access these facilities. An example of this may be a child who is self-harming, suicidal, abusing drugs and-or alcohol, where all other attempts by the Health Service Executive have not stabilised the current, serious situation.

  I previously advised, and the Minister confirmed, that there are 16 children on a waiting list. An article in yesterday's edition of The Irish Times by Carl O'Brien states that the waiting time in this regard is 65 days, on average. The case in respect of these children is the subject of a High Court order. The lead-in period in terms of reaching High Court order stage is quite lengthy. I do not know what the longest or shortest waiting time on that list is but for these 16 children it is on average 65 days. These are the children for whom everything else has failed. These are desperate situations. I cannot understand or accept that we have a waiting list in this area.

  We are all aware of the recent Health Information and Quality Authority's report into Rath na nÓg in which serious concerns were raised. The response by the HSE was to close the facility, which made me believe at that time that there was a demand for places. I know, having spoken with social workers, that if there was not a blockage in the system in terms of accessing services, there would be 40 children on the waiting list. Rightly, one has to go to the High Court to obtain an order to ensure safeguards are put in place. As well as placing children on a waiting list, we outsource. The figures in this regard were reported in yesterday's The Irish Times. Could we not develop a home grown solution that would be in the bests interests of the children?

  The Minister stated on Second Stage that by 2016, 35 places would be available. As I said, there are currently 16 children on a waiting list. If there is one thing that this agency should ensure it is that there will be no waiting list for these special care placements. By the time these cases get to the High Court they have been through a lengthy process. Since the Second Stage debate I have spoken to many social workers who told me of the number of different hoops through which they have to jump before getting to the High Court stage. It is really serious that children are on waiting lists for, on average, 65 days.

  There has been much talk about Ireland's past failings, in respect of which some 30 reports have been published. For me this is not about the past rather it is about the present. That there are 16 children and young people whose health, safety, development or welfare is at substantive risk are on a waiting list for on average 65 days is unacceptable. I accept that the Minister cannot give assurances in the Bill. However, I am extremely concerned. This issue is not going away. It should be the driving factor for the new agency. We need to change this practice. There should not be a waiting list for special care placements. I do not doubt the Minister's integrity and compassion in this regard. However, the more I talk to social workers about these particular children and they explain these cases about which we are talking the more concerned I am. I do not want to read about these children in a child death report. I want us to do something about this issue now. I do not want to be talking in the future about how desperate this situation was. That would make headlines in the papers. The real headline for me is that we cannot provide these places for these children today.

Deputy Frances Fitzgerald: Information on Frances Fitzgerald Zoom on Frances Fitzgerald Everybody is working to ensure that we put in place the best services in terms of special care. Clearly, there are many challenges in relation to the development of the type and level of child protection services that we all want to see provided. This will not happen overnight. As I said on the last occasion we discussed this legislation, there is a national plan in place to increase the number of placements. I note Senator van Turnhout's concern and want to assure her that this issue is a priority for Gordon Jeyes. For the first time since I took office, we will have a national director of special care and the focus will be on the needs of these children. Placements have been and continue to be increased. A huge amount of attention and service is being directed at these children while awaiting placements. They are not on their own. Many of them are in highly secure places or specialist foster placements. I take the Senator's point in regard to the High Court's statement that they require special care.

  An assessment, consultation and therapy service, ACTS, team has been appointed to work with these children and to provide them with psychological support when in and on leaving the special care placement. The members of this team, which includes among others a psychologist and social worker, were appointed in the past few months. This service has not heretofore been available. There are many challenges in working with this group of children in terms of their high levels of need. Some of them end up requiring placements abroad. It is not feasible right now for us to provide in this country the range of services these children need. However, our goal must be to ensure we have in place those services in this country. In this regard, I am exploring a North-South dimension. We could seek to provide these facilities, which are specialist in terms of the needs of these children who often have behavioural and sexual problems and serious addictions to alcohol and drugs, on a North-South basis. We do use placements abroad. The number in this regard has varied considerably. Every effort is made to ensure that the services required are available in this country because, clearly, this is preferable. However, just as children with medical complications often need to go abroad to get a specialist service if not available here, for which the HSE pays, so, too, do these children in terms of treatment for emotional and sexual problems. The facilities they attend abroad are usually very specialist and experienced in working with young adolescents. Some of the outcomes from the work done by these services with these children have been very good. Families have been very satisfied and the young people have gone on to do well.

  We are increasing placement numbers. Waiting times vary considerably. The waiting list can sometimes be cleared following referral to services by the courts, as in the case of the referrals to Oberstown, the reason for which were not quite clear. The waiting list then reduced and beds became available. The Senator will have seen how the publicity waxed and waned in relation to the demand for those beds. This is an area which Gordon Jeyes and his team are paying a lot of attention to and are treating seriously. As I stated, a national therapeutic team has been appointed and the waiting list, which as stated earlier varies from time to time, is being managed as well as possible. I am and will continue to monitor the situation to ensure that those children most in need of the service get it, although much is dependent on the placement they are already in. Where serious concern is expressed in regard to a particular child being required to be moved to special care, this is done as quickly as possible in all circumstances.

Senator Jillian van Turnhout: Information on Jillian van Turnhout Zoom on Jillian van Turnhout I thank the Minister for her response. I welcome what she said. The idea of the development of services on a North-South basis is to be commended. Perhaps that is the way forward. The difficulty is that these children still have to be supported. This will require the pulling together of essential resources and a skewing of those resources to ensure young people who are particularly vulnerable are supported.  As I stated, the difficulty is that while the official waiting list may be 16 children, people from right around the country who spoke to me told me the number actually was at least 40 children. In reality, there is not a push for places because unless places are available, no application will be made to the High Court. Surely, the driving factor as to whether a special care order is sought should be the best interest of the child. It should not be about whether a place is available. Consequently, I believe the problem may be larger than it appears at first glance. However, I take the Minister's commitment and obviously, it is an issue I will continue to pursue because for me, an average waiting time is 65 days. When a court order is made, there is quite a lead-in process involved and what really concerns me is that it takes 65 days from that point.

Deputy Frances Fitzgerald: Information on Frances Fitzgerald Zoom on Frances Fitzgerald I have nothing further to add.

  Question put and agreed to.

  Sections 59 to 68, inclusive, agreed to.

SECTION 69

Senator Diarmuid Wilson: Information on Diarmuid Wilson Zoom on Diarmuid Wilson I move amendment No. 15:

In page 48, line 31, after “Children” to insert “or the Health Information and Quality Authority”.

Deputy Frances Fitzgerald: Information on Frances Fitzgerald Zoom on Frances Fitzgerald As Members are aware, the Health Information and Quality Authority, HIQA, is an independent organisation with the legal power under the Health Act 2007 and the responsibility to monitor and inspect a number of services provided by the Health Service Executive, HSE, to children and young people in Ireland. It does not have a role in respect of individual complaints.

  Amendment, by leave, withdrawn.

Senator Diarmuid Wilson: Information on Diarmuid Wilson Zoom on Diarmuid Wilson I move amendment No. 16:

In page 48, between lines 35 and 36, to insert the following:
“(3) The Health Information and Quality Authority shall have an oversight role in the performance of the Agency and its functions as set out in section 8 of this Act.”.

This amendment is essentially similar.

Deputy Frances Fitzgerald: Information on Frances Fitzgerald Zoom on Frances Fitzgerald Yes, as I stated, the Health Information and Quality Authority has a monitoring role and function under the Health Act 2007. It also has the power to make recommendations in respect of how services are provided and to follow up on the implementation of its recommendations. HIQA's remit now also includes child welfare and protection services delivered by the HSE's children and family services. I took the decision last year that HIQA should monitor child protection services and a number of reports already have been produced that show improvements in some areas and gaps in others. However, I am pleased that HIQA is examining precisely how the services are being delivered across the country. Given that HIQA was established under health legislation, any expansion of its remit such as that proposed in this amendment would fall to my colleague, the Minister for Health. As time goes on, however, everyone will be watching how the role of HIQA develops and I have no doubt but that it will move into other areas. For the present, I am satisfied with the role it will play in respect of the child protection services because that was expanded last year. As I stated, that work has now started and at least six reports already have been produced.

  Amendment, by leave, withdrawn.

  Section 69 agreed to.

  Sections 70 to 91, inclusive, agreed to.

SECTION 92

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke Amendments Nos. 17 and 18 are related and may be discussed together, by agreement. Is that agreed? Agreed.

Senator Jillian van Turnhout: Information on Jillian van Turnhout Zoom on Jillian van Turnhout I move amendment No. 17:

In page 55, line 10, after “day-care” to insert “, naíonra”.

This is a technical amendment to include the Irish word, "naíonra" in the provision. A naíonra is an Irish-medium play group for preschool children and naíonraí follow the principle of total early immersion. A naíonra is a group of children coming together for two to three hours in a pleasant, cheerful and safe environment under the guidance and supervision of their leader. The staff structure the environment to ensure that all facets of the child's holistic development are catered for and to give the child the opportunity to acquire Irish naturally through the medium of play, which is this group's chief method of learning. In the same way that terms such as "play group", "day nursery" or "crèche" are included, I seek the insertion of "naíonra", because it is a highly specific type of early years placement and it would be important to include it here. It is not a direct translation into the Irish language but has a specific meaning, in the same way the word "crèche" has a specific meaning.

Senator Diarmuid Wilson: Information on Diarmuid Wilson Zoom on Diarmuid Wilson I support the proposal.

Deputy Frances Fitzgerald: Information on Frances Fitzgerald Zoom on Frances Fitzgerald On the purpose of the new Part VIIA of the Child Care Act 1991, the definition to be applied to a preschool service is as follows:

‘pre-school service’ means any pre-school, play group, day nursery, crèche, day-care or other similar service which caters for pre-school children.

The key elements of this definition in respect of the amendment proposed are the inclusion of the phrases "any pre-school ... or other similar service". The naíonraí are preschools and consequently, fall clearly within the bounds of this definition. Even were it to be argued that this definition does not hold sway by virtue of the naíonraí conducting their service through the medium of Irish, there then can be no argument with the application of the term, "other similar service", given that the cohort of children served in the naíonraí are those aged from two to five, that is, before they reach school-going age. If methodologies such as language immersion are to be cited in the Act, then for completeness and consistency it would be necessary to list all such similar methodologies such as, for example, Montessori, Steiner or HighScope, to name but a few. It also would require that as best practice changes in the early years sector and as new thinking emerges, such new methodologies also would require listing. Primary legislation does not, in general, spell out the minute detail of every aspect required for a provision but rather the broad intent of the Legislature. In this instance, I believe it is quite clear that naíonraí are encompassed in the definition. I hope the Senator will accept this point.

Senator Jillian van Turnhout: Information on Jillian van Turnhout Zoom on Jillian van Turnhout I will withdraw the amendment. I received representations on this matter and consequently, I will revert and consult further with the organisations concerned.

  Amendment, by leave, withdrawn.

  Amendment No. 18 not moved.

Senator Jillian van Turnhout: Information on Jillian van Turnhout Zoom on Jillian van Turnhout I move amendment No. 19:

In page 59, line 20, to delete “and welfare” and substitute “welfare and promote the development”.

The purpose of this amendment is to ensure this provision aligns with the proposed new section 58B, in which the regulations are outlined. This was amended at an earlier Stage of the Bill and I am trying to ensure consistency in the language between this provision and section 58B (1 ), in order that the regulations and the duty of the person providing the early years services are exactly aligned. I believe it is quite a technical amendment to ensure this, because I have a concern about Members differentiating between the regulations and the duty of the person providing the early years services. They should be clearly aligned.

Deputy Frances Fitzgerald: Information on Frances Fitzgerald Zoom on Frances Fitzgerald As section 58B of the Child Care Act 1991 will allow the Minister to make regulations to promote the development of children, it is not necessary to repeat this in section 58G. I therefore do not intend to accept the amendment. However, I will keep this under review in the context of amending the Child Care Act, which I intend to do. As the Síolta and Aistear programmes develop and when they are embedded across the sector, the question of how this can best be captured can be examined. I believe the review of the child care legislation, which will take place next year, is the appropriate place to so do.  I take on board the Senator's comments but I suggest that section 58B already deals with it and allows the Minister to make regulations to promote the development of children. If further legislation is needed to embed some of the best practice we are trying to drive in terms of the quality preschool agenda, we can examine how that might be done in terms of the changes to the Child Care Act.

Senator Jillian van Turnhout: Information on Jillian van Turnhout Zoom on Jillian van Turnhout The difficulty is we are speaking about four words that would align the regulations along with the person providing early years services. It is problematic that we are excluding four words "and promote the development". It could be seen to be a deliberate intention of the Bill to exclude that from the person who is providing the early years service in order that they are looking after the health, safety and welfare of children while not having responsibility for promoting the development. I believed that this was a technical amendment because it was seeking to outline that the regulations and the duty of the persons providing such are the same.

Deputy Frances Fitzgerald: Information on Frances Fitzgerald Zoom on Frances Fitzgerald I have nothing further to add.

  Amendment, by leave, withdrawn.

  Amendments Nos. 20 and 21 not moved.

  Question proposed: "That section 92 stand part of the Bill."

Senator Jillian van Turnhout: Information on Jillian van Turnhout Zoom on Jillian van Turnhout I thank my colleagues Senators Fiach MacConghail, Mary Ann O'Brien and Katherine Zappone for their support on these amendments. I have a concern in regard to section 92 because those exemptions are articulated in the Child Care Act 1991. I believe the belt and braces are in place. By reiterating the exemptions, we are putting on a straitjacket. I raised my concern in regard to vetting when the National Vetting Bureau (Children and Vulnerable Persons) Bill came before the House. We know that there are about 19,000 settings where 50,000 children are regularly minded on a paid basis by childminders who are not relatives. We are specifically exempting 50,000 children. They were exempted in the Child Care Act. I do not understand the reason we have to articulate the exemptions again in this legislation. I do not understand the ruling but I take it, because they are already exempted. The belt and braces were put on in the Child Care (Amendment) Act and we are putting them on again in this Bill. We are saying it again, just to be sure that everybody knows it is hands off in the case of any child who is being minded by somebody. For example, Childminding Ireland has said it would like to see regulations and supports similar to what is in place in Scotland, although they are slightly lesser regulations. These children are being minded on a contractual basis. The childminders are being paid and are not relatives. We are talking about 50,000 children and I have a huge concern that we are physically exempting them again. That is the reason I tabled the amendment and the reason I imagine Senator Terry Leyden tabled a similar amendment.

Senator Aideen Hayden: Information on Aideen Hayden Zoom on Aideen Hayden I have a certain amount of sympathy with what Senator Jillian van Turnhout has said. At the recent Labour Party conference in Killarney I tabled an amendment for a reconsideration of the Child Care Act 1991 on the specific ground that we do not have adequate regulation of children who are minded outside of preschool settings. The majority of children are minded in unsupervised settings which is entirely inappropriate. I accept it is not the function of this legislation but I want it placed on the record that it is Labour Party policy, following our conference at the weekend, and I hope the Minister will revisit the issue and the Child Care (Amendment) Act in early course.

Deputy Frances Fitzgerald: Information on Frances Fitzgerald Zoom on Frances Fitzgerald As we had to repeal all of the section, that is the reason it has to be repeated in this Bill. What the legislation is doing is providing for the first time that if one runs a preschool service, of which there are 4,500, one must be registered. We are coming from a situation where there has been relatively little regulation of the sector and not even registration. All one had to do was notify the HSE that one was going to open a preschool service. Certainly that was not good enough. We are providing for registration and, as I have said many times, developing a broader preschool quality agenda, including the requirement that people must have a higher level of training before they can work in the sector. When that provision becomes effective from September of this year and next year, one will not be allowed work in the sector unless one has a certain level of training. That is the right thing to do because standards are linked to training and are also linked to inspection.

  What is being done in the inspection area? We are putting the reports of inspections online. For the first time there are more than 1,600 reports online from every county in Ireland. People no longer have to go through freedom of information. Every time a service is inspected, a report is put online. Reports on inspections which have taken place in recent weeks are online. There is much greater transparency in the sector in terms of inspection. As Members will be aware, I got funding in the budget for more training, a mentoring programme to support the sector and the recruitment of new inspectors as we did not have an inspector in every county in Ireland and we need extra inspectors.

  The question of childminders arose. Some countries have said that parents take private decisions about the care of their children. They employ a person and make a decision. Some parents seek references and take great care with that decision. Childminding has not been regulated in this country unless one is minding a certain number in one's home. It is viewed as a private decision taken by parents. It is an area some believe should be regulated in the same way as I have described the childminding early years services are being regulated, asked to reach certain standards and inspected to ensure they reach those standards. Given there are perhaps 50,000 childminders, how do we move towards a similar situation that would support parents' decisions? I think many parents would like to see that. Others may prefer to be allowed to take their own individual decision but most parents would want to see standards and support for those childminders.

  It has been a very informal sector despite incentives to register and despite incentives to link with the local child care committee. Only a very small proportion of childminders have done so compared with the numbers who are looking after children. In terms of moving towards greater State involvement with childminders, that is an issue to be examined in the early years strategy which will be brought forward next year. I also asked the task force to examine it. This is all part of a greater focus on the early years. In some ways it is surprising this topic has not received greater attention up to now, but I certainly think it will be on agenda as we move forward. There is also a question of resources.

  We are beginning work on the preschool quality agenda and moving to ensure greater transparency, higher standards and put some training in place. There had been a huge focus on buildings, not on the quality of the service. I believe the discussion on how to regulate and support childminders will be part of that discussion. It has to be incremental, building on the work being done with the preschool quality agenda and the early years school services.

Senator Jillian van Turnhout: Information on Jillian van Turnhout Zoom on Jillian van Turnhout I welcome the Minister's commitment and I agree that what is being done is a major step forward. That is very important. We need to look at the issue of childminders as we progress and develop. Childminding Ireland has approached me and said this is something it is seeking. As I said earlier, it has been done in Scotland which has different standards from the early child care settings so we are not comparing like with like. For example, parents have said that services the State provides, such as Garda vetting, cannot be accessed. If a parent wants to make a choice, perhaps the State could support the parent in making the choices as well as the reference checking. We need to look at how we move forward in this area, but that is not an issue for today's Bill.

  Question put and agreed to.

  Sections 93 to 97, inclusive, agreed to.

  Schedules 1 to 3, inclusive, agreed to.

  Title agreed to.

  Bill reported without amendment.

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke When is it proposed to take Report Stage?

Senator Michael Mullins: Information on Michael Mullins Zoom on Michael Mullins Next Thursday.

  Report Stage ordered for Thursday, 5 December 2013.

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke When is it proposed to sit again?

Senator Michael Mullins: Information on Michael Mullins Zoom on Michael Mullins At 10.30 a.m. tomorrow.

Adjournment Matters

Medical Aids and Appliances Provision

Senator Marie Moloney: Information on Marie Moloney Zoom on Marie Moloney I thank the Minister for Children and Youth Affairs, Deputy Frances Fitzgerald for coming to the House.

  Women from County Kerry undergo breast surgery, when required, in the centre of excellence in Cork. Following surgery, the breast care nurse does the first fitting, after which women can access specialist bra or prosthesis fitting services in the community. This is not the case in County Kerry, however, and it is the reason I have tabled this Adjournment matter. In Kerry General Hospital, the nurse deals with all cancer patients and is not dedicated full-time to the care of breast cancer patients. This places great demands on the nurse, and her time for fitting bras and prostheses for breast cancer patients is limited.

  We are looking for a place in County Kerry where women can go to have a fitting for their bra or prosthesis in private. If one needs a wig following cancer treatment, one can go to Boots and can avail of a cubicle while they fit the wig. We are looking for a similar service for women who have had mastectomies and are wearing prostheses.

  A prosthesis needs to be fitted by a specialist. The body shape can change when a woman has a single mastectomy and the garment needs to be fitted properly. While I know the Minister will tell me there is a service in County Kerry, this is very limited and many women are directed to Cork. We are the only county in the country in which the women must go to the breast care nurse for a fitting, while in other areas, the women can go directly to specialists without having to go through the hospital.

  I will await the Minister's reply and comment further at that stage.

Minister for Children and Youth Affairs (Deputy Frances Fitzgerald): Information on Frances Fitzgerald Zoom on Frances Fitzgerald I am taking this Adjournment on behalf of my colleague, the Minister for Health, Deputy James Reilly. I welcome the opportunity to address the House on the issue of breast cancer and, in particular, in regard to women who have had mastectomies.

  Since 2001, all women who have had breast cancer surgery are entitled to their first prosthesis and two mastectomy bras free of charge, irrespective of their medical card status. This service is normally provided by breast care nurses and trained mastectomy fitters. Medical card holders are entitled to a prosthesis every two years, as well as two mastectomy bras annually. This is organised on prescriptions from their breast care nurse or GP. Prescriptions are processed through local health centres to enable women to avail of the services from suppliers who are authorised by the HSE to provide prostheses and mastectomy bras. The HSE can also provide assistance with specialised clothing and wigs to medical card holders in some circumstances. The community welfare services may also assist in cases of exceptional need.

  Significant progress has been made in breast screening and in the treatment of breast cancer in recent years. BreastCheck, the national cancer screening programme, provides free mammograms to all women aged 50 to 64, the years through which the incidence of breast cancer is highest. Cancer services are centralised in eight designated cancer centres established in four managed cancer networks. Symptomatic breast clinics, as well as rapid access lung and prostate clinics, have been established in each of the eight cancer centres.

  The national cancer control programme has developed national GP referral guidelines and electronic cancer referral for breast, lung, and prostate cancers, making the referral process seamless, safer and more efficient. A national hereditary cancer programme, primarily focused on breast, ovarian and bowel cancer, has been established in collaboration with the National Centre for Medical Genetics in Crumlin. This initiative aims to improve access to assessment and genetic testing for patients, and their families, whose cancer may have a hereditary component.

  Breast cancer survival rates are improving as a combined result of screening, early detection and more effective treatment. Every effort is made to meet the needs of women who have had a mastectomy and who have prosthesis. Breast cancer five year survival is estimated at 81.8% for people diagnosed between 2003 and 2007, up from 76.8% for people diagnosed between 1998 and 2002. The Minister wants to inform the Senator that he will continue to work with the HSE, clinicians and voluntary organisations to ensure treatment outcomes for cancer patients continue to improve.

  I am aware Senator Moloney raised a very specific issue but she did not mention the services for the women in County Kerry in particular in her question. I take on board the points she has made. Perhaps she will communicate with, and have the issue of the local service followed up by, the Minister for Health. The reply deals with the service in the national context.

Senator Marie Moloney: Information on Marie Moloney Zoom on Marie Moloney I thank the Minister for her response, but my question referred specifically to the service in County Kerry, so unfortunately I have received the wrong reply as there was no mention of Kerry in it.

Deputy Frances Fitzgerald: Information on Frances Fitzgerald Zoom on Frances Fitzgerald It was not mentioned in the question.

Senator Marie Moloney: Information on Marie Moloney Zoom on Marie Moloney Obviously somewhere along the line, the question got changed from what I dictated. I wanted specific answers for the Kerry area and that was not provided. I ask for leave to submit the question again at some stage. Do I have to wait a specific length of time before I can raise this issue again?

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke We might be able to allow it in the circumstance.

Senator Marie Moloney: Information on Marie Moloney Zoom on Marie Moloney I will resubmit the question after Christmas.

Deputy Frances Fitzgerald: Information on Frances Fitzgerald Zoom on Frances Fitzgerald The Senator should communicate with the Minister in the meantime.

Senator Marie Moloney: Information on Marie Moloney Zoom on Marie Moloney I will. I thank the Minister for that.

  The Seanad adjourned at 8.10 p.m. until 10.30 a.m. on Wednesday, 4 December 2013.


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