PART VIII

Other Provisions

39. —In this Part “the appropriate Minister” means—

(a) in relation to Waterways Ireland, the Minister for Arts, Heritage, Gaeltacht and the Islands,

(b) in relation to The Food Safety Promotion Board, the Minister for Health and Children,

(c) in relation to The Trade and Business Development Body, the Minister for Enterprise, Trade and Employment,

(d) in relation to The Special EU Programmes Body, the Minister for Finance,

(e) in relation to An Foras Teanga, the Minister for Arts, Heritage, Gaeltacht and the Islands, or the Minister for Education and Science, as may be appropriate having regard to the functions of that Body,

(f) in relation to The Foyle, Carlingford and Irish Lights Commission, the Minister for the Marine and Natural Resources.

40. —(1) (a) Where the appropriate Minister in relation to a particular Body designates an officer of his or hers for the purposes of this section, the officer shall, on such day as may be specified by the appropriate Minister, be transferred to, and become and be a member of, the staff of the Body.

(b) A designation may be made under paragraph (a) in relation to an officer of the appropriate Minister whose duties relate wholly or mainly to a function transferred to the Body to which the designation relates or who consents to the designation.

(c) A designation under this subsection may be made at any time before but not more than 2 years after the day on which the functions of the appropriate Minister are transferred under this Act.

(d) Before making a designation under this section the appropriate Minister shall consult the person concerned and any recognised trade union of which he or she is a member.

(2) Where the Minister for Arts, Heritage, Gaeltacht and the Islands designates a person who immediately before the dissolution of Bord na Gaeilge was a member of its staff for the purposes of this section, the member shall, on such day as may be specified by that Minister of the Government, be transferred to, and become and be a member of, the staff of An Foras Teanga.

(3) Where the Minister for the Marine and Natural Resources designates a person who immediately before the dissolution of the Foyle Fisheries Commission or the Commissioners of Irish Lights was a member of the staff of either of those bodies for the purposes of this section, the member shall, on such day as may be specified by that Minister of the Government, be transferred to, and become and be a member of, the staff of The Foyle, Carlingford and Irish Lights Commission.

(4) (a) Where the Minister for Enterprise, Trade and Employment designates a member of the staff of Enterprise Ireland or Forfás for the purposes of this section, the member shall, on such day as may be specified by that Minister of the Government, be transferred to and become a member of the staff of The Trade and Business Development Body.

(b) Paragraphs (b), (c) and (d) of subsection (1) shall apply to a designation under this subsection as it applies to a designation under that subsection with any necessary modifications.

(5) (a) In this subsection “the transferor” means Bord na Gaeilge, the Foyle Fisheries Commission, the Commissioners of Irish Lights, Enterprise Ireland or Forfás, as may be appropriate.

(b) The contract of employment between a person designated under subsection (2), (3) or (4) and the transferor shall have effect on and from the day specified by the appropriate Minister in relation to the designation as if originally made between the person and the Body of whose staff he or she becomes a member by virtue of the designation.

(c) Without prejudice to paragraph (b)—

(i) all the transferor's rights, powers, duties and liabilities under or in connection with a contract to which that paragraph applies shall by virtue of that paragraph be transferred to the Body aforesaid on the day referred to in that paragraph;

(ii) anything done before that day by or in relation to the transferor in respect of that contract or the person shall be deemed from that day to have been done by or in relation to the said Body.

(d) Paragraphs (b) and (c) are without prejudice to any right of a person designated as aforesaid to terminate his or her contract of employment if a substantial change is made to his or her detriment in his or her working conditions, but no such right shall arise by reason only of the change in employer effected by paragraph (b).

(6) In relation to staff transferred by this section, previous service in the civil service, Bord na Gaeilge, the Foyle Fisheries Commission, the Commissioners of Irish Lights, Enterprise Ireland or Forfás shall be reckonable for the purposes of the Redundancy Payments Acts, 1967 to 1991, the Holidays (Employees) Acts, 1973 and 1991, the Minimum Notice and Terms of Employment Acts, 1973 to 1991, and the Unfair Dismissals Acts, 1977 to 1993.

41. —(1) Where any legal proceedings are pending to which a Minister, a Board or a Commission is a party and the proceedings have reference to functions transferred by the relevant section from that Minister, that Board or that Commission, the name of the Body to which the functions are transferred shall, in so far as the proceedings relate to any function transferred by the relevant section, be substituted in the proceedings for that of that Minister or that Board or that Commission or be added in the proceedings, as may be appropriate, and the proceedings shall not abate by reason of such substitution.

(2) Anything commenced and not completed before the transfer of a function under the relevant section by or under the authority of the person from whom the function is transferred may, in so far as it relates to that function, be carried on or completed on or after such commencement by the Body to which the function is so transferred.

(3) Every instrument made under statute and every other document (including any certificate or licence) granted or made in the exercise of a function transferred by the relevant section shall, if and in so far as it was operative immediately before such transfer, have effect on and after such transfer as if it had been granted or made by the Body to which the function is transferred, and the transfer of a function by the relevant section shall not affect the validity of any such document as granted or made or any other act done by or in relation to the person from whom the function is transferred before such transfer, and any such document or act shall, if in force immediately before that transfer, continue in force to the same extent and subject to the same provisions as if it had been duly granted, made or done by, or in relation to, that Body.

(4) References to a Minister, a Board or a Commission in the memorandum or articles of association of any company and relating to a function transferred from that Minister, that Board or that Commission by the relevant section shall, on and after the transfer, be construed as references to the Body to whom the function is transferred.

(5) All property, rights and liabilities held, enjoyed or incurred in relation to a function transferred by the relevant section shall, on such transfer, be and are hereby transferred to the Body to whom the function is transferred and, accordingly, without any further conveyance, transfer or assignment—

(a) the said property, real and personal, shall, on such transfer, vest in that Body,

(b) the said rights shall, as on and from such transfer, be enjoyed by that Body,

(c) the said liabilities shall, as on and from such transfer, be liabilities of that Body.

(6) Any moneys, stocks, shares or securities transferred by the relevant section that on such transfer are standing in the name of the person from whom they are transferred shall, on the request of the Body to which they are so transferred, be transferred into its name.

(7) The administration and business in connection with the performance of any function transferred by the relevant section are hereby transferred to the Body to which the function is so transferred.

(8) A certificate signed by a Minister that any property, right or liability has or, as the case may be, has not vested in a Body under the relevant section shall be sufficient evidence, unless the contrary is shown, of the fact so certified for all purposes.

(9) A Minister may by regulations make such adaptations and modifications of any statute (including sections 11, 28, 34 and 36) or instrument made under any statute or the memorandum or articles of association of any company as he or she considers necessary or expedient to enable this section and those sections to have full effect.

(10) In this section—

“a Board” means Bord na Gaeilge or Bord Fáilte éireann;

“a Commission” means the Foyle Fisheries Commission or the Commissioners of Irish Lights;

“Minister” means the Minister for Arts, Heritage, Gaeltacht and the Islands, the Minister for the Marine and Natural Resources or the Minister for Education and Science, as may be appropriate having regard to the function, asset or liability concerned (including a function, asset or liability of a Board or a Commission);

“the relevant section” means section 11 , 28, 34 or 36.

42. —(1) The Minister for Finance may make grants to the Special EU Programmes Body out of moneys provided by the Oireachtas of such amounts and subject to such conditions as he or she may determine for the purposes of expenditure by that Body in the performance of its functions.

(2) Any other appropriate Minister may, with the consent of the Minister for Finance, make grants to a Body out of moneys provided by the Oireachtas of such amounts and subject to such conditions as the appropriate Minister may, with the like consent, determine for the purposes of expenditure by that Body in the performance of its functions.

43. —The power to borrow money conferred on a Body by paragraph 2.2 of Part 7 of Annex 2 to the Agreement shall not be exercised without the consent of the Minister for Finance and the Northern Ireland Minister.

44. —A Body may, with the approval of the Minister for Finance, charge fees and impose other charges in respect of the performance of its functions and any fee or other charge paid to a Body by virtue of this section or of any power transferred to it shall be retained by it and used for the purposes of the performance of its functions.

45. —(1) A Body may, subject to the approval of the Minister for Finance, accept gifts of money, land or other property upon such trusts or conditions (if any) as may be specified by the donor.

(2) A Body shall not accept a gift if the trusts or conditions attached to it would be inconsistent with its functions.

46. —Notwithstanding section 1 (2), a section, being section 43 , 44 or 45, shall not come into operation in relation to a Body unless provision to the like effect is made in the financial memorandum relating to that Body referred to in paragraph 2.2 of Part 7 of Annex 2 to the Agreement.

47. —The Minister for Foreign Affairs is hereby authorised to give a direction under Article 7 of the Agreement to a Body, and a Body shall act in accordance with any such direction.

48. —Judicial notice shall be taken of the seal of each Body and a document purporting to be an instrument made by a Body and to be sealed with the seal of the Body (purporting to be authenticated in accordance with paragraph 4.2 of Part 7 of Annex 2 to the Agreement) shall be received in evidence and be deemed to be such instrument without proof unless the contrary is shown.

49. —(1) Subject to subsection (2), the appropriate Minister shall cause a copy of the annual report of a Body to be laid before each House of the Oireachtas.

(2) In the case of An Foras Teanga, the reference in subsection (1) to the appropriate Minister shall be construed as a reference to the Minister for Arts, Heritage, Gaeltacht and the Islands.

50. —(1) In this section—

“the Act of 1980” means the Ombudsman Act, 1980 ;

“the Northern Ireland Ombudsman” means the person who performs in Northern Ireland functions corresponding to those of the Ombudsman.

(2) The Act of 1980 shall apply in relation to the Bodies with any necessary modifications and as if there were a reference to each of them in Part I of the First Schedule to that Act, but such application shall be restricted to actions taken in the State by or on behalf of a Body.

(3) During a preliminary examination or an investigation under the Act of 1980 of an action taken by or on behalf of a Body, the Ombudsman shall consult with the Northern Ireland Ombudsman in relation to the conduct of the examination or investigation and, where he or she considers it appropriate to do so, may make available to the Northern Ireland Ombudsman information (including a copy of a document) furnished to him or her for the purposes of the examination or investigation; but, any decision or recommendation falling to be made following such an examination or investigation shall be made solely by the Ombudsman and he or she shall furnish a statement in writing of any such decision or recommendation to the Northern Ireland Ombudsman.

(4) Where a complaint is made to the Northern Ireland Ombudsman in relation to an action taken in the State by or on behalf of a Body and the matter is referred to the Ombudsman by the Northern Ireland Ombudsman, the Act of 1980 shall apply as if a complaint in relation to the matter had been duly made under that Act to the Ombudsman.

(5) Where a complaint is made to the Ombudsman in relation to an action taken in Northern Ireland by or on behalf of a Body, he or she shall refer the matter to the Northern Ireland Ombudsman and shall furnish to him or her any information (including a copy of a document) in relation to the matter in his or her possession.

(6) The Ombudsman shall, when so requested by the Northern Ireland Ombudsman in relation to the investigation by the Ombudsman for Northern Ireland of an action taken in Northern Ireland by or on behalf of a Body, liaise and consult with him or her in relation to the matter.

51. —(1) In this section—

“the Act of 1988” means the Data Protection Act, 1988 ;

“action” includes failure to act and references to taking an action include references to such a failure;

“the Commissioner” means the Data Protection Commissioner;

“data controller” and “data processor” have the meanings assigned to them by the Act of 1988;

“established” shall be construed in accordance with Directive 95/46/EC of the European Parliament and the Council of 24 October 1995¹ on the protection of individuals with regard to the processing of personal data and on the free movement of such data;

“the Northern Ireland Commissioner” means the person who performs in Northern Ireland functions corresponding to those of the Commissioner.

(2) The Act of 1988 shall apply in relation to the Bodies with any necessary modifications and subject to the subsequent provisions of this section.

(3) Where the data controller concerned is established in the State only, the Act of 1988 shall apply in relation to any matter concerning that data controller.

(4) Where the data processor concerned is established in the State only, the Act of 1988 shall apply in relation to any matter concerning that data processor.

(5) Where the data controller concerned or the data processor concerned is established in the State and in Northern Ireland, the Act of 1988 shall apply in relation to any matter concerned only if the processing concerned takes place in the State.

(6) In so far as the Act applies to a Body or to a data processor of a Body, the Body shall be deemed to be a person to whom section 16 of the Act of 1988 applies.

(7) Where—

(a) a complaint is made to the Commissioner in relation to a Body or the data processor of a Body and the matter is one to which, by virtue of this section, the Act of 1988 does not apply, and

(b) the data controller concerned or the data processor concerned is situated in Northern Ireland or the processing takes place in Northern Ireland,

the Commissioner shall refer the matter to the Northern Ireland Commissioner and shall furnish to him or her any information in relation to the matter in his or her possession.

52. —(1) A Body shall not be liable to pay any rates under the Valuation Acts and any hereditament or tenement used or occupied by a Body shall, for the purpose of section 2 of the Valuation (Ireland) Act, 1854, be deemed to be of a public nature and occupied for the public service.

(2) A Body shall not be liable for the payment of any direct tax, or any duty, in respect of any lands or income.

53. — A Body shall be deemed to be—

(a) a State authority for the purposes of section 13 of the Statute of Limitations, 1957, and

(b) an appropriate State authority for the purposes of section 70 of the Landlord and Tenant (Amendment) Act, 1980 .

54. — Section 4 of the Documentary Evidence Act, 1925 , shall apply to regulations and bye-laws made by a Body.

55. —(1) For the purpose of ensuring that the arrangements for the agreed co-operation referred to in paragraphs 8 and 9(i) of Strand Two of the Multi-Party Agreement, in so far as they relate to public bodies, will commence contemporaneously with the transfer of powers to the Northern Ireland Assembly, public bodies concerned shall have such functions as are necessary or expedient for that purpose.

(2) In this section “public body” means a local authority for the purposes of the Local Government Act, 1941 , a health board or any other body established by any enactment.

56. — For the purposes of the Comptroller and Auditor General (Amendment) Act, 1993 —

(a) the examination referred to in paragraph 2.5 of Part 7 of Annex 2 to the Agreement shall be deemed to be an audit, and

(b) the value for money examinations referred to in paragraph 2.7 of that Part shall be deemed to be examinations provided for by section 9 of that Act.

Section 2.

¹ O.J. No. L281 23.11.95, p. 31.