What the law says when it comes to asking NAMA questions
It's open to anyone, be they politicians, business people or ordinary members of the public, to contact Nama with questions or concerns. There are, however, strict regulations set down in law governing the manner in which this is done.
Anyone who communicates with Nama on their own behalf or on behalf of a third party needs to be aware of and in compliance with the provisions of Section 221 of the Nama Act 2009.
A failure to do so leaves any person who commits an offence under this section liable on conviction to a fine of up to €1,000 or a term of imprisonment of up to six months or both.
Section 221 was set down specifically in the Nama legislation passed by the Houses of the Oireachtas to prevent anyone from attempting to lobby Nama in relation to its decision-making process.
According to the Nama Act: "if a person communicates on behalf of another person with Nama, a Nama Group entity or a person providing services or advice to Nama or a Nama Group entity with the intention of influencing the making of a decision ... the person commits an offence".
Section 221 defines these decisions as anything relating to:
- The lending of money.
- The initiation of legal proceedings.
- Legal proceedings that are already under way.
- The engagement of the services of an expert advisor or other service provider.
- Any other matter that could give an advantage or benefit to a person other than Nama.
- A tender.
- The purchase or sale of property.
The Nama Act states, however, that it is not an offence if the communication to Nama is:
- Made public at the time of the communication.
- Made without an intention to benefit, or confer an advantage on, any specific person.
- Made in the public interest.
Any Nama official who believes that they have been communicated with in an improper manner, and in contravention of Section 221 of the Nama Act, is obliged to report the matter to An Garda Siochana. Failing this, they have committed an offence themselves.
While Nama established a dedicated email address in 2011 for TDs and senators to raise legitimate questions in relation to its operation and activities, they are still required to use the facility with careful regard for the provisions of the Nama Act.
For even though Section 221 stipulates that no offence is committed if the person communicating with Nama is acting in his or her professional capacity or in the course of his or her employment, and is doing so in that capacity, it is still possible for politicians using the dedicated Nama email address to fall foul of the law. Indeed, in responding to parliamentary questions on Nama, Finance Minister Michael Noonan has on a number of occasions advised TDs to direct their queries to the agency using the dedicated email address provided that the terms of Section 221 are "respected".
Mr Noonan has made it clear in his replies that questions to Nama from politicians should be on "matters of public interest" without elaborating on what is in the public interest.