Tuesday, 14 June 2005
Dáil Eireann Debate
The Minimum Notice and Terms of Employment Acts deal only with notice and no longer deal with terms of employment. Terms of employment are dealt with in a separate Act, the Terms of Employment (Information) Act 1994. Therefore, we are seeking to amend the collective citation to delete the misleading reference to terms of employment.
Minister of State at the Department of Finance (Mr. Parlon): It would appear that the purpose of this amendment is to provide for a change in the name of the Minimum Notice and Terms of Employment Acts 1973 to 2001. We approached the Attorney General’s office on this matter and were advised that the citation used in section 1(4) of the Bill is correct. While it is the case that sections 9 and 10 of the Minimum Notice and Terms of Employment Act 1973 relating to terms of employment have been repealed by the Terms of Employment (Information) Act 1994, the Title of the 1973 Act remains unchanged. This is due in part to the fact that there are a number of subsequent pieces of employment legislation containing provisions which directly relate back to the 1973 Act, certain sections of which are to be construed as part of that Act. In any event the Title of legislation cannot be amended retrospectively on the basis that the citation contained in the Bill is correct. Therefore, I cannot accept the Deputy’s proposed amendment.
This amendment goes to the heart of the Civil Service Regulation Bill which sets about modernising the system of management within the public service in order that we will have proper strategic accountability from the public service. Most of us were amazed that the Bill we are debating is designed to implement legislation passed in 1997. Clearly there is a problem with the speed with which the reform process is occurring within Departments. My amendment seeks to have laid before the Houses of the Oireachtas each year a report relating to modernisation and human resource management in the public service that would set out the progress in delegating responsibility to local managers, the targets and accountability systems relating to delegated responsibility, the performance appraisal systems and associated procedures for promotion, reward or tendering, the opening up of competition for posts, the human resource management effects of relocation, and progress made in the strategic management initiative.
The reason it is important to debate the matter again on Report Stage is that the Taoiseach had an assessment conducted by the PA consulting group in March 2002. Even the greatest fans of the public service would say this was a poor report. Right across the board there was damning evidence that the momentum for serious strategic management reform had been lost. Page after page cited a lack of adequate understanding, processes and delegation. There were serious problems. That was in 2002 and undoubtedly things have moved on.
Recently we had before the Joint Committee on Finance and the Public Service those senior public servants dealing with strategic management. Without seeking to put words into people’s mouths, a consensus emerged that the strategic management initiative had not succeeded in putting high level targets in place for which people would be accountable. We were not seeing the level of progress nor was there a level of buy-in in the system nor teeth to make it happen. Against this background the responsibility falls on the Oireachtas to create the momentum for that sort of change and to strengthen the hand of many in the public service who want to see progress on this front. They want a modern human resource strategy that will promote people on merit, will not restrict positions because it is muggins turn and will not turn away innovation coming from outside the public sector. It is important that this House and also the Minister of State takes its courage in its hands. The Minister comes from a party which has a strong commitment to reform and to breaking the mould, in that party’s own words. Most people agree the mould has not been sufficiently broken to allow a modern approach to public service management, accountability and decisions.
I regard it as alarming that the Government expenditure review process had ground to an ignominious halt. The important issues of delivery of service and giving good value for money had been allowed to be put onto the back burner. To give the Department of Health and Children a complete exemption from any expenditure review is in my view a condemnation of the approach to public spending. This matter was the subject of a good debate and the Minister of State on Committee Stage admitted the need for more momentum in this area. I am hopeful he will accept this amendment which I am sure he has discussed with his colleagues in Government.
At his recent appearance before the Joint Committee on Finance and the Public Service the Taoiseach gave us to believe that his commitment was to see far greater reporting of this nature to the Oireachtas. This is the time for the Minister of State to step up to the plate and accept it is time for change. The acceptance of these amendments is as good a way as any for starting the momentum of change.
Mr. Boyle: My amendment No. 18 has been grouped for discussion with Deputy Bruton’s amendment No. 1a. While his amendment is comprehensive in its scope, my amendment seeks to address an issue which is at the core of this Bill but also a core means of defining the Civil Service and enabling it to be modernised. One of the many difficulties associated with the reform of the Civil Service is the failure to address the central philosophy that the Civil Service can and should be generalist in its make-up. We live in a fast-changing society where specialisms are required more frequently. My amendment proposes the Minister of State should present an annual report on the proportion of civil servants in specialist grades and who undertake specialist functions on behalf of the State.
This is increasingly a matter of more importance as the Minister of State is probably finding out daily when he surveys the wreck that is the Government’s decentralisation policy. Those who apply for positions outside the Dublin area are hopelessly mismatched against positions requiring to be filled in various locations. Without an effective audit of the specialised and general skills within the Civil Service, the fear is that not only will the Civil Service be spread-eagled across the country in different locations but it will be quite unbalanced in terms of the skills of the people in Departments and State agencies.
The Minister of State should accept this amendment because it is vital for the future health of the Civil Service to have civil servants in specialised grades. This failure of recognition has caused significant sums of money to be lost in the past. I speak as a member of the Committee of Public Accounts. Issues as wide-ranging as residential institutions redress and the failure to properly account for the granting of medical cards to the over-70s show a lack of people with negotiating skills or skills vital to the business of Government. My understanding is there are no more than three people in the whole Civil Service employed in actuarial roles, one of whom works for the Pensions Board, the second in the Department of Social and Family Affairs and I presume the third can be found in the Department of Finance. There does not even seem to be a template in existence of what specialisations are needed in the Civil Service. This Bill does not define which specialisations might be required in the future, nor how they can be accounted and planned for and is therefore flawed legislation unless this amendment is accepted. On those grounds I am anxious to hear the Minister of State’s response and whether he is willing to accept this amendment and avoid future misexpenditure, which is the grammatically incorrect but proper term. Lack of appropriate political leadership has seen money being misspent by the Civil Service in the recent past. There is a need to have people with specialised skills in place to serve the country and the Civil Service in the future.
Ms Burton: I support the amendments proposed by Deputies Bruton and Boyle. It is fortunate the House is taking Report Stage of this Bill in the aftermath of what we now know as a result of the Morris report, the Travers report, the ongoing information which is slowly but surely emerging about the national aquatic centre and the structures adopted to give a €62 million public asset to a company originally registered in the British Virgin Islands with a share capital of €127. What my two colleagues are asking for in their amendments is perfectly reasonable and sensible. It is particularly so in the context of last week’s report by the Ombudsman which has shown that the Freedom of Information Act has pretty well collapsed, as this Government intended. With the collapse of freedom of information under the Fianna Fáil — PD Government and the closing of the light, it should be remembered the opening of the concept of accountability in freedom of information was a critical feature of this country beginning to prosper from 1994 onwards. This was a period of opening up and of letting in the light.
The Government proposes in this Bill to shift the power of firing significantly to the senior echelons of public service management, but — this is significant — there is no corresponding provision for public accountability of the performance of those senior Civil Service managers. By closing off the Freedom of Information Act and the right to information, whether by citizens, journalists or by Members of the Dáil, there is a concentration of power without accountability in the hands of Ministers and in particular in the hands of senior Civil Service managers. I will happily support these amendments.
Caoimhghín Ó Caoláin: I also support both amendments. However, along with Deputy Boyle, I am somewhat at a loss in not having a copy of amendment No. 1a. While these amendments may have been placed in our pigeonholes while we were here for earlier business, would it be possible that they could be circulated? Having listened to Deputy Bruton’s contribution I accord with what he said. I also support the proposition of Deputy Boyle.
Without repeating what has been said, we need a greater and clearer profile of all who work within the Civil Service. The proposal for an annual report to indicate the breakdown of those with specialist responsibility would be useful and would better inform Members of both Houses of the Oireachtas. It is critical to have a sense of the number and proportion of the overall Civil Service employment coded as specialists and with specialist responsibility, and the projections for same for future years. I support the amendments as presented and I thank the usher for the distribution of a copy of amendment No. 1a as referred to.
Mr. Parlon: The Deputies’ proposals seek to introduce an additional system to monitor progress on the agenda for modernisation and human resource management across the Civil Service. As Deputy Bruton said, we had a substantial debate on the issue on Committee Stage at which time I said that we already have a comprehensive and elaborate structure for monitoring progress in these and other areas of the modernisation programme. These have been introduced under the Civil Service modernisation programme, which sets out an accountability framework for Departments and offices. I am satisfied this is appropriate for the structure and nature of Civil Service modernisation.
The framework is set out in the Public Service Management Act 1997 which provides that the Secretary General or head of office must prepare and submit to the Minister a strategy statement in respect of the Department or scheduled office every three years or whenever a new Minister is appointed. Under the Act, annual progress reports on the implementation of the strategy statement must be submitted to the Minister. This system, while providing a legislative framework for monitoring performance, also allows Departments the flexibility to update and change priorities continually in response to specific demands. We clearly already have a well embedded and effective framework for accountability, which is examined and strengthened on an ongoing basis. By specifying the areas where Departments and offices should report on progress, the Deputy’s proposal would constitute an excessively inflexible and bureaucratic reporting mechanism.
I would like to comment briefly on the progress that has been made and the monitoring arrangements in place in respect of some of the areas mentioned in Deputy Bruton’s amendment. The amendment refers to progress in respect of delegation to line managers. The extent of devolution is a matter to be decided by individual organisations as it differs depending on the size and structure of the organisation and the nature of the policy issues involved. Reporting in this area would be particularly burdensome as different levels of delegation are appropriate in the areas of human resource management and financial management.
Similar issues arise with Deputy Boyle’s amendment. The Civil Service employs specialists as and when required. Needs differ from Department to Department and from office to office, and management must have the flexibility to determine the skills required to carry out the business of the organisation on an ongoing basis in line with the devolved reporting structures I have just set out. It would therefore be unduly restrictive to the work of Civil Service organisations to require the Minister for Finance to announce annual targets for the employment of such staff.
The amendment also includes a reference to targets and accountability systems relating to delegated responsibility. Departments and offices have installed management information systems and human resource management systems which are necessary to ensure increased accountability and which will facilitate further delegation. Progress in respect of both these systems is monitored frequently by a number of different bodies, including my Department, and the implementation group of Secretaries General. Additionally, given the high priority of strengthening the financial management information available, each Department makes quarterly reports to departmental management advisory committees and to the central management information framework unit in the Department of Finance as well as biannual reporting to Government.
Strong emphasis is placed on strengthening the accountability framework in place in the Civil Service through improvements to the budgetary process. Following his announcement in the budget for 2005, the Minister for Finance is considering a number of options which will improve the quality of debate and the data available to the House on the budget and the Estimates. Developments in respect of the management information framework, the expenditure review initiative and the pilot project on resource allocation and business planning will inform this process. The increasing focus on the use of outputs and outcomes in accounting for public expenditure will contribute to strengthening further the accountability framework in the Civil Service.
The amendment also referred to progress on performance appraisal. This is monitored on an ongoing basis centrally by the implementation group. Additionally, a comprehensive report, Evaluation of the PMDS in the Civil Service, was recently published by Mercer Human Resource Consultants, and is available to the public. Following the survey, it has been agreed to link the performance management and development system with other HR processes such as increments, promotion and progression to higher salary scales. This will considerably strengthen the focus on accountability at individual level.
The amendment also suggested that progress regarding opening posts to non-civil servant applicants should be included in an annual report. Progress in this area is already monitored by my Department. Progress has been made since the provision was agreed as part of Sustaining Progress and we continue to work on the matter.
These examples illustrate that sufficient mechanisms are in place to monitor progress in the areas proposed by the Deputies. The accountability framework in place under the strategic management initiative, which includes the Public Service Management Act 1997, strategy statements, annual reports and PMDS, puts in place the framework for assigning accountability at all levels of the organisation. It is more appropriate to build on and strengthen existing arrangements, as we are doing in respect of the budgetary process, for example, than to duplicate them unnecessarily and add to the administrative burden. The proposed amendments would restrict the policy of increasing devolution and accountability which is central to the modernisation programme. For these reasons I do not accept the amendments.
Mr. Bruton: When he was president of the IFA, did the Minister of State ever think he would come in here and give a “Sir Humphrey” answer of the nature of the one he just read out? He has informed us that being accountable to democratically elected people here would be burdensome and inflexible and would put the public service into a straitjacket. Where is the great zeal he had in the past for demanding results and demanding performance from the public service? Now that he has a chance to do something about it, he says that it cannot be done as it would be too upsetting to many people and that we already have many accountability structures. These are so vast that no one can understand them at any one time.
In reality, spreading accountability through reporting to different bodies and monitoring committees but never to the Dáil means that elected Members do not have the capacity to hold public servants accountable in any meaningful way. We need to drill down to make those specifically responsible come before us and account for the way in which devolution is occurring and the way in which the SMI is being delivered, which is not happening. On any fair assessment we are not achieving from the public service the sort of pace of reform to deliver value for money and high performance. Public servants need such a system and need the pressure of accountability from the Oireachtas to deliver such performance. The Minister of State is standing with his finger in the dyke claiming it cannot happen. If the Minister of State casts his mind back a few years, could he have believed he would deliver such a reply in the House when the occasion for addressing public service accountability arose?
Mr. Boyle: Perhaps what the Minister of State has said is based on his own experience in dealing with civil servants in the Department of Agriculture and Food over the years. In his reply he has confirmed the need for my amendment. In saying that civil servants acquire specialised skills as and when they need them, he has exposed a major flaw at the heart of how the Civil Service is organised. Surely the Civil Service requires specialised skills at all times. It also undermines the Government’s obsession in seeking external so-called expertise to fulfil roles that could be played quite adequately by a properly resourced and skilled Civil Service. The Government is willing to use consultants at every opportunity to confirm its own prejudices, rather than having a proper thought out policy conducted through a properly structured Civil Service. In his response, the Minister of State confirmed a prejudice towards a properly resourced and fully functioning Civil Service that is at the heart of this Government. This Bill is not about reforming the Civil Service, but another chapter in an ideological free market approach to how the Government should be involved in services. If the Minister is not willing to examine the specialised skills we have in the Civil Service, those that we need and how we are to monitor them to improve quality, then I wonder if this Government believes in government as it is meant to be.
Mr. Parlon: Deputies Boyle and Bruton raised the issue of my experience in dealing with the Civil Service. The improvement in the service delivered by the Department of Agriculture and Food in the last six years has been magnificent. The civil servants now deal with individuals and they deliver a superb service. During the recent closing period for applications for the single farm payment, the offices stayed open throughout the weekend and until midnight on Monday.
The administrative burden has been massive and we are trying to strengthen the arrangements we have. What is being proposed in the amendment would only add to the administrative burden we are trying to eliminate. We have had SMI, strategy statements, annual reports and PMDS. If we improve on those, we will have a much more efficient Civil Service.
Mr. Bruton: The Minister’s approach is extremely disappointing. He is praising the systems which were described as not working in a recent report he presented to us. The report stated that the roll out of the management information system is still at a relatively early stage and that the link between financial analysis and decision making remains relatively weak. If we want to support public servants who are advocating change, we must have a system that illustrates that work at this level. All of the systems described by the Minister, such as the strategic management books, are never narrowed down to five simple targets. I asked Ministers what were their top five strategic targets. Not one Minister could name those targets, nor could any of them describe progress for any of their targets. However, the Minister is trying to present this system as perfect. He is unable to display the targets of any Department, nor can he compare one Department with another, nor show the policies put in place to deliver the targets. He claims that is asking too much and that it already has been done, but I do not see it and I try harder than most to disentangle these various strategic management documents.
I do not believe the Minister of State. I do not see any Department offering high level targets to which it is committed. Until we see that, we will not see the sort of change that has been heralded as necessary in the various reports of the SMI. The presentation by senior management of the SMI was extremely disappointing. They had to admit that they were way behind in setting high level targets that would be monitored and delivered.
The Minister of State extolled the expenditure review initiative. I do not know how he has the neck to claim that it is contributing greatly to the improvement of public decision making, when the secretaries told us that less than 20% of reports to be done were actually delivered in the last three year period. The Department of Health and Children, having spent €11 billion, was exempted from any value for money audits because it was too busy carrying out reforms. What sort of a system allows Departments away with that? The Minister of State then claims that we have an exemplary system and anything demanded by the Opposition would be far too burdensome. That is not the case and the Minister of State is deceiving himself. We need a more honest debate about delivering results. We need complete reform on the way the Estimates are presented and a reform of the accountability demanded by senior management in the public service. It is not acceptable that the budget for the Department of Health and Children can be trebled yet no target is set for what that will achieve. No targets are set and none is delivered. When Ministers are under pressure in this House, they will scramble to find the nuggets that look good and will ignore the rest. That represents the level of accountability we have, which is just cute hoorism. That is not good enough in a modern democratic State.
I do not pretend that this amendment is perfect. However, I am disappointed that the tone of the Minister’s response is very defensive, claiming that everything in the garden is rosy and that the last eight years have been wonderful, unlike the bad old days.
Mr. Bruton: That is not the experience of someone who deals with the health service. I do not have any farmers in my constituency any more. I used to have one, but the family probably died out, so I do not know what is happening in the Department of Agriculture and Food. I do know it has put much effort into reforming its IT system. However, that is not enough. The Government is accepting too little when demanding accountability. It also offers little accountability to those of us elected to hold the system to account. It is not committed to the change that is needed and I am disappointed with that.
Both amendments are technical and were put forward by the Office of the Attorney General. Section 6 of the Bill amends section 2(2) (d) and section 2(2)(e) of the 1956 Act to provide for the appropriate authority in respect of the staff of the Houses of the Oireachtas. The proposed amendments change the current reference in the Bill to “joint staff” to read “the staff of the Houses of the Oireachtas Commission”, in accordance with section 12(1) of the Houses of the Oireachtas Commission Act 2003, which states that a person who, immediately before the establishment day was a member of the staff of the Houses of the Oireachtas, or the joint staff of the Houses of the Oireachtas, shall be transferred to and become a member of the staff of the commission on that day.
Amendment No. 4 is a technical amendment put forward by the Office of the Attorney General. Section 7 of the Bill amends the ten-year provisions contained in section 5 of the 1956 Act. The amendment to section 5(3) currently outlined in the Bill provides that the Government may delegate the powers and functions under section 5 to dismiss a civil servant to an appropriate authority other than a Minister. The Office of the Attorney General has advised the Department that to copperfasten the legal authority of an appropriate authority to exercise the powers to dismiss a civil servant under new section 5(3), it should refer back to section 5(1) which provides that every established civil servant shall hold office at the will and pleasure of the Government. Amendment No. 4 makes it clear that the delegation of powers relates specifically to the power to dismiss an established civil servant.
Ms Burton: I raise a question I have asked the Minister of State before. The phrase “will and pleasure of the Government” is rather old fashioned. While the Minister of State tells us we are in a brave new world of improved management criteria and reporting to the extent that one would never think our hospitals were in chaos or that people’s experience of public transport was so bad, his use of language in the Bill is incredibly old fashioned. The provision has obviously not been subject to a management report, consideration or review. As we raised the matter on Committee Stage, I ask the Minister of State if he has had an opportunity to consider it.
Mr. Parlon: Deputy Burton has been very selective in some of the crises she recounted from last week’s news. I hope she remembers the CSO figures on which she failed to remark which show that in the 12 months previous to last year, we created over 72,000 jobs. It was an average of 1,400 jobs per week and a very positive development. I wish the Deputy would be more balanced on some issues.
Amendment No. 4 was put forward by the Office of the Attorney General, which I will not challenge on the use of language. While it sounds old fashioned, the phrase in question is very appropriate legally to the measure.
Mr. Bruton: Amendment No. 5a is a direct result of the report of Mr. Quigley on the appointment of a PR person in the Department of the Environment, Heritage and Local Government. Having exposed a number of features of the appointments system as unsatisfactory, the report of the former Revenue Commissioner set out a number of recommendations on how to deal with circumstances where a person is brought in on contract to carry out certain work and single-tendering is used on grounds of urgency. The report identified the need for process auditors to oversee such appointments and contained direct comments on possible risks where a Minister suggests a particular person for a contract. While a great many issues arose at the time which caused considerable public concern, I have seen no initiative or legislative change to address them. While we are told by the Taoiseach that many changes have occurred, my amendment seeks to copperfasten some of the lessons which were learned from the experience outlined in the Quigley report.
Amendment 5a provides that the Minister should, by regulation, outline procedures to be applied where a person is engaged on contract for a specified period or for the duration of a specified project. The procedures should provide for the documenting of the criteria for deciding whether to engage a person as a civil servant or consultant or otherwise, the tender procedure chosen for selection, the reason for the choice and the method of oversight of the selection procedure and subsequent recording of work carried out under the contract and its quality. Apart from generating political debate on the original appointment, of which there was a great deal, the decision exposed a flaw in the system. The House must be assured the flaws have been corrected. If they are not to be corrected in legislation — I have seen no evidence of suggestions from the Taoiseach or Minister of State in this regard — we must be told what procedures have otherwise been put in place. I hope the Minister of State will accept my amendment as a means of putting this episode behind us and ensuring we have learned its lessons to avoid a repeat scenario.
Ms Burton: I support Deputy Bruton’s amendment. It would be useful in view of all that has happened in recent times, if the Minister of State could outline the exact position on civil servants employed for fixed terms or specified projects as outlined in the Bill. There are a couple of specific examples I want to draw to the Minister of State’s attention. The Taoiseach’s project to develop Abbotstown is being carried out through the medium of a company in which the shares are held by the Taoiseach, the Minister for Finance and the Minister for Arts, Sport and Tourism. I understand the entire staff of the company are on secondment from the Civil Service. Certainly, that is where they originated. For four years, the Government has promised the House that a Bill would be introduced to deal with Abbotstown, but it has never materialised despite being top of the Government’s list. In the meantime, a judge outlined in court last week that the company gave a €62 million State asset to a €127 company originally registered in the British Virgin Islands. Anyone familiar with the registration of companies in that location will know that it very often gives rise to queries on tax status etc.
Ms Burton: The Government appointed civil servants to a company in which the share capital is held by the Taoiseach, the Minister for Finance and the Minister for Arts, Sport and Tourism. While I presume the civil servants are on secondment, I cannot know as freedom of information has been abolished.
Ms Burton: I am a Member of the Opposition and it is completely legitimate for me to put the question to the Minister of State who makes provision in sections 5, 6 and 7 of the Bill to appoint civil servants for fixed terms or special projects. We are absolutely entitled to ask the Minister of State to explain how this would operate. It is a legitimate question for the Opposition in Parliament to ask the Minister of State to account for such matters. In the same way it is completely legitimate to ask the Minister of State to account for how the area he oversees purchased a site for a jail through a committee of civil servants. In that case the price of the land rose from agricultural value by multiples of ten.
Ms Burton: These are legitimate questions. What are the implications of the Bill for the structure adopted by the Government in regard to the oversight of the National Aquatic Centre? A judge stated last week that what had happened in that regard was unbelievable. The Progressive Democrats Party is never off its high horse about looking after the proper spending of Government money yet a judge has stated in court that this was an extraordinary disclosure of events. These things happened within the remit of the Minister of State. Can he comment——
Ms Burton: The amendment put forward by Deputy Bruton rightly seeks to throw light on this extremely murky area of activity by the Government. I urge the Minister of State to make a statement as to how the events which have been unfolding continuously since last January in regard to a number of such projects relate to this Bill and the proposals put forward by Deputy Bruton. It is a completely reasonable question. If the Minister of State were on this side of the House we would never be done hearing from his friend, the Minister for Justice, Equality and Law Reform, Deputy McDowell.
Mr. Boyle: This section is closely related to the amendment which I tabled earlier regarding the Minister’s willingness on behalf of the Government to buy in expertise whenever and however necessary. It is incumbent on the Government to put in place the highest standards and safeguards. Deputy Bruton’s amendment is an attempt to do that in regard to short-term appointments. I hope the Minister of State will look on it favourably as it would strengthen a particularly weak aspect of this Bill.
Further questions must be asked about the future reliance on bought in expertise in regard to the Civil Service. Various Governments, particularly those since 1997, have compartmentalised the business of Government and placed it outside the remit of this House in terms of accountability. We cannot ask questions to the line Minister regarding their functions vis-à-vis various State agencies. There is a fear that we will see more of this, not alone in regard to agencies but also in regard to the work of part-time, temporary civil servants who are working on behalf of the State and will probably not be accountable even in the short tenure foreseen for them by the Minister in future. They will certainly not be accountable once their tenure has finished.
The Minister has clearly not thought through many aspects of this matter. We are entering into dangerous territory in terms of how the business of Government is conducted on a day-to-day basis by people who will not have direct responsibility and who will not have anything approaching the full accountability of elected representatives in this House. I urge the Minister to consider favourably Deputy Bruton’s amendment as one small measure towards addressing this lacuna in what remains a badly flawed Bill.
Caoimhghín Ó Caoláin: I support Deputy Bruton’s amendment. It must be acknowledged that what is sought in amendment No. 5a is eminently reasonable, that the Minister shall, by regulation, outline procedures which are to be applied where a person is being engaged on contract for a specified time or for the duration of a specified project. Each of the specifics in regard to what needs to be outlined in paragraphs (a), (b) and (c) of the amendment can hardly be argued against. If anything the amendment would strengthen the Bill and provide more public confidence in the Civil Service. It would also be in the interest of the Civil Service itself. I urge the Minister of State to accept the amendment and I record my support for it.
Mr. Parlon: Deputy Burton should table a parliamentary question precisely on the issue to which she referred. I sat beside the Minister, Deputy Cowen, during the last Question Time and Deputy Burton ranted, raved and upset the Minister to a considerable extent.
Mr. Parlon: It might have been the Deputy’s intention to annoy him but no specific questions were asked, which the Deputy evidently wishes to do, as at every opportunity this afternoon she has raised this issue.
Mr. Parlon: The speaking note I have will show that events which have taken place in regard to the Rights Commissioner have prompted this measure. This legislation has been going through the House for some time.
Section 7 inserts a new section 5A into the 1956 Act which currently provides that both established and unestablished civil servants can be appointed either for a specified period of time or for the duration of a particular project or requirement. The aim of this provision was to enable certain people who were appointed on contracts to hold established status. Its purpose was primarily to resolve a number of administrative difficulties which currently arise in regard to officers who were appointed from open competitions initially on an unestablished basis and who may then acquire established status following a satisfactory period of probation.
The second purpose was to facilitate the extension of one year contracts to all new recruits in the Civil Service as provided for in Sustaining Progress. The section also allowed for other officers on contracts to be appointed on an established basis, thereby creating additional manpower flexibility. However, since Committee Stage of the Bill on 2 February a Rights Commission decision has issued in regard to a number of cases concerning the appointment of people to the Civil Service on fixed term contracts. In the light of the issues raised in these cases, legal advice was sought from the Office of the Attorney General. This advice highlighted the need for clarification so there is no doubt in reconciling the concept of a relationship governed by contract with the legal position contained in the original Act, that is, that all established civil servants hold office at the will and pleasure of the Government under section 5 of the 1956 Act. The Attorney General’s office therefore recommended amending section 7 of the Bill on Report Stage in order to remove any ambiguity. I therefore propose an amendment in order to provide that only an officer on a contract for the purposes of a probationary period may be appointed as an established officer on contract and that all other appointments on a contract will continue to be in an unestablished capacity only. With this text the position of new entrants to the Civil Service is very clear, officers will in future be appointed initially in an established capacity on contract on probation with a view to being appointed as established officers following satisfactory completion of the period of probation. In future this mechanism will be applied to all new appointments to the Civil Service at all levels in accordance with the commitments made under the current national agreement, Sustaining Progress. This amendment addresses the concerns that Deputy Bruton set out in the proposed amendment that were initially raised on Committee Stage. As the amendment is based on the existing text in section 7 of the Bill, which is to be changed, this amendment will no longer be relevant and on that basis I cannot accept it.
Mr. Bruton: I am not sure that making contracts probationary addresses some of the issues raised in regard to the procedure for the selection of the person involved — which I was seeking to address — or the decision on whether the person should be engaged as a probationary established public servant rather than an employee in some other capacity. It does not deal with the oversight of people during the making of probationary contracts.
My concern relates to the difficulties that were exposed by the appointment of a PR consultant by the Minister for Communications, Marine and Natural Resources, which led to much public unease. We need to ensure that the various steps in that chain which were subject to public unease are addressed. I do not believe that the Minister of State’s amendment achieves this. He seems to be addressing a broader issue concerning contracts in the public service rather than the concern that arose in respect of the apparent lack of a proper process audit — that is the phrase that was used — associated with the way in which the tenders were made and the way in which the contracts were set and whether this was in the public interest or whether, as ought to have been the case, it was done on an arm’s-length basis. Those are the areas of concern. I do not believe the Minister of State’s amendment deals with them and I am somewhat puzzled by his reply.
Ms Burton: It could be that Cinderellas go to the British Virgin Islands. That could be the problem. It may be what is responsible because, of course, they all have tax connections in this country.
Ms Burton: The Minister of State said he is dealing with people who are coming into the permanent Civil Service but on a probationary basis. He is also implying that he is dealing with civil servants on contract who are unestablished. Deputy Bruton’s amendment concerns a person who is employed by a Minister as an adviser on contract in that provision is being made for him or her to be in an unestablished position or, as I stated in respect of the National Aquatic Centre, for contracts to be given via a company owned by Ministers. What is the position on Government advisers, be they directly appointed as advisers and, therefore, unestablished civil servants or, as was referred to in the Quigley case, appointed by means of a contract?
The Minister of State referred to unestablished civil servants who are on contract. His reply has not been at all clear on this matter. The question pertaining to civil servants on probation, who are perhaps entering a long-term career as ordinary civil servants, is entirely different to that pertaining to advisers and other such people who may be appointed in a political context but who are unestablished. The Minister of State has not answered this.
My original question — I hope the Minister of State will not become irritated when I refer to it — related to the mechanism whereby a valuable State asset worth €62 million was run through the device of a company being managed by people apparently on leave from the Civil Service, who then contracted their responsibility to operate it out to a consortium. A distinguished judge was incredulous that the State could have done this in the way it had been done. My question was reasonable and deserves a reasoned response rather than a tetchy one.
Mr. Parlon: When it comes to tetchy responses, I would not hold a candle to Deputy Burton. As regards my comment on her parliamentary question, her attempt to tar everybody in the Government with one brush by implying that they are not fully clear in their tax affairs is what upset Deputy Cowen. He made it clear that he did not take that on board.
Ms Burton: In a recent court judgment, a judge in this State expressed extreme alarm and concern that a €62 million asset, owned and paid for by the taxpayer, was given to a company with a share capital of €127 and which had its original incarnation in the British Virgin Islands.
The Government has taken on board the observations of Mr. Quigley. To this end, it is examining the recommendations of the report and taking action in a number of areas. As recommended in the Quigley report, the Government has incorporated in the Cabinet handbook guidelines in this area relating to where a Minister is seeking a named person for a consultancy or the contract comprises a significant element of direct service to a Minister. These guidelines apply, in particular, in the PR or communications areas, where there is a significant element of direct service to a Minister or where a Minister is suggesting the name of a person or enterprise for a consultancy or contract. In these circumstances, the Secretary General of the relevant Department is now required to inform the Secretary General to the Government who will arrange, if necessary, for the Cabinet secretariat to inquire into any aspects of the proposed procurement that it considers necessary. Arising from this, the Secretary General will then make recommendations to the Taoiseach as to whether any special conditions should be observed in the procurement process. The guidelines are effective immediately and are being brought to the attention of all relevant Departments and offices.
The Quigley report also recommended that the Department of Finance should review the guidelines dating from 1999 regarding the engagement of consultants, particularly in the context of single tendering arrangements where urgency is stated as the grounds for proceeding. A sub-group of the Government’s contracts committee, including representatives of the Department of Finance, is examining existing guidelines on the engagement of consultants to ascertain what changes might be needed to promote best practice in tendering, avoidance of conflicts of interest, monitoring and recording of work done, estimating costs of projects and observing appropriate reporting requirements. It is expected that the group will complete its work shortly and will publish new consolidated guidelines. The issues raised are being addressed comprehensively in the appropriate manner outside this legislative process.
This is a technical amendment suggested by the Office of the Attorney General, the purpose of which is to amend the current wording of section 15(2) of the Act, set out in section 10 of the Bill, so that it will replicate exactly that which was originally contained in the 1956 Act.
This amendment deals with the question of the position of civil servants who, in good faith, wish to report suspicion of illegality or other wrongdoing to a body or person having a legal function in respect of such illegality or wrongdoing. Its purpose is to provide a minimum protection for whistleblowers. The UK has already enacted such legislation. It means, in effect, that a whistleblower could not be disciplined for reporting impropriety to relevant bodies. However, the amendment does not cover reports made to the media.
The Minister of State’s colleague, the Minister for Justice, Equality and Law Reform, Deputy McDowell, wanted to discipline members of the Garda because he believed they had excessive contact with the media at times. This does not deal with the media. However, it is a question of checks and balances.
The Minister of State is introducing, in this and other legislation, extremely powerful and extended powers for the bosses in the Civil Service, namely, the Secretaries General. There is the evidence of tribunals, disclosures, for example, from the Flood tribunal as regards a former manager in the Dublin city and county area. These were shocking revelations, particularly for those who in the past had worked so hard and with such integrity in all the different areas of the public service. There were also the recent stunning revelations from the Morris tribunal as regards what went wrong and how various elements of the Garda Síochána administering the system simply failed. The judge set it out in stunning detail.
Earlier today, Deputy Ó Caoláin raised the issue of the death of Councillor Eddie Fullerton in Donegal some time ago. This is another matter in respect of which there are serious questions to be answered by senior management in the Garda Síochána as well as in the Police Service of Northern Ireland. In all of these cases, much of the information was only leaked or seeped out because very brave people were prepared to try to bring them into the public domain.
In giving senior service managers vastly increased powers in terms of firing civil servants, the Labour Party is saying that there is a serious case for the Government to introduce a compensating mechanism to protect people who have honest and legitimate concerns and who have insight into absolute wrongdoing or the wasting of public money. I am not referring to a cranks’ charter. Senior managers sometimes like to assert that whistleblowing gives some type of licence to cranky people to make complaints that are unjustified. The amendment from the Labour Party is entirely reasonable. I hope the Minister of State will be in a position to accept it because it is absolutely essential for the continuing functioning of our democracy.
The Minister of State’s party and colleagues in Government have repeatedly stated, at the Joint Committee on Finance and the Public Service, in respect of the scandals in the Irish banking industry that is necessary for the banks to provide a conduit for employees who become aware of wrongdoing to allow them to safely disclose information without damaging themselves. Politicians from all parties accept that in private business it is absolutely correct, where people hold great positions of trust, power and authority, that there should be a provision for employees who become aware of wrongdoing to enable them, without endangering their jobs, to bring it to the attention of persons with responsibility.
I do not understand why the Government should be reluctant to grant the same protection to civil servants who, for the most part, have served the country with the most enormous integrity since the foundation of the State. However, there are cases of mismanagement, wrongdoing and, in a small number of cases, corruption in the public service. In the context of the Bill, therefore, a whistleblower’s charter is an absolutely essential balancing component to the type of additional powers that the legislation gives to Civil Service bosses.
Caoimhghín Ó Caoláin: I wish to speak to amendment No. 8 and in support of amendment No. 7. These amendments are in the domain of the whistleblowers. It would be preferable if we had dedicated legislation as regards this area rather than adopting a piecemeal approach as legislation presents. A dedicated whistleblower’s Bill is what is actually required. Few committees will have the experience the Joint Committee on Finance and the Public Service has of the role that whistleblowers played in the scandals as regards banks and other financial institutions. Whistleblowers have been the catalysts for a series of inquires and, it is hoped, actions as a consequence of such exposures. Undoubtedly, a very important area has to be addressed. Whistleblowers need legal protection. That is what we want to see and it should apply both in the private and the public sectors.
As Deputy Burton said, the amendments seek to protect people who are bringing their awareness or suspicion of wrongdoing “to a body or person having a legal function in respect of such matters”. That is an important point to emphasise. We have heard Government spokespersons claim that a new climate exists, following the jailing of the former Minister, Mr. Ray Burke. If that is the case, it is a further argument in support of the adoption of these amendments. They must be adopted in order that legislative effect can be given to this new climate that we wish to see and encourage.
The Morris report shows how a corrupt culture existed in one arm of the State, namely, the Garda Síochána, in Donegal at least. That culture has clearly contributed to the silence of many who would otherwise have had the courage to report what they knew or had observed. I have no doubt that there are many responsible and conscientious members of the Garda who, because of the culture that existed, did not feel at ease in coming forward when they should have done. We need to root out that culture and the only way that this can be done is to offer——
Caoimhghín Ó Caoláin: No, we are not talking about informers. Even the use of that term in jest is an impediment and discouragement to people who act responsibly as regards matters of such public importance as this legislation addresses, namely, the Civil Service and the abuses that all too sadly take place within its ranks. These people need to be protected and the amendments provide for the introduction of the protection required. This applies not only with regard to the example I gave vis-à-vis the Garda but across the board in the Civil Service.
This is a straightforward amendment which the Minister of State should have no difficulty in accepting. I use this opportunity to commend again a dedicated Bill to address all the issues relevant to whistleblowers. However, in the absence of that intent — the Government has clearly put its face against it — I urge the Minister of State to accept the amendments.
Mr. Bruton: I support the amendments. If we are extending new powers such as these, it is even more important that we have proper power to protect whistleblowers, as clearly set out in both amendments, when they report to agencies with clear responsibility in the relevant matter. The proposal does not relate to idle whistleblowing for no purpose but to the reporting of concerns to an authority appointed by the Oireachtas to take action in the appropriate area. The amendments propose a minimum provision and I support them.
Mr. Boyle: I also support the amendments. If we are to believe media reports, which are, unfortunately, the most reliable source of information about this increasingly opaque Government, not only is one of the Minister of State’s senior party colleagues in Cabinet having difficulties introducing the civilising influence of café bars but the larger party in the coalition is also reluctant to accept his proposals to reform the libel laws. While some degree of discomfort may arise from the tone of questioning taken by the media or the interpretation of reportage, in a democratic society we should make every effort to encourage the release of information into the public domain. Thereafter, we should use our critical faculties to interpret such it correctly. The same applies to information which comes to light through the Civil Service.
These are considered amendments which do not even go as far as to encourage civil servants to adopt the shout it from the roof tops approach common in some other democratic countries. Both amendments specifically provide that the entity to which the concern is reported should be a person or body with a legal function in respect of the presumed illegality which has been exposed. I fail to see how any Administration with a sincere interest in open government would have difficulty with amendments of this type. Unfortunately, however, a slew of legislation, starting with the Freedom of Information (Amendment) Act 2003, has shown that we do not have such a Government.
I am not confident that the Minister of State is amenable to accepting the amendments. If, however, he wants to bring about the type of reforms we require, he would do well to start by accepting either amendment, both of which demonstrate a confluence of thinking. If he does so, he will have taken one small step to improve the quality of the Bill.
I am impressed with Deputy Ó Caoláin’s enthusiasm for the proposition that people living along the Border should come forward with information. Previously, his party and organisation would have taken a different view in terms of——
Mr. Parlon: As I indicated on Committee Stage, I agree that it is important to protect officers who wish to report wrongdoing within their organisations in the hope of preventing or stopping such behaviour. To this end, protections are already afforded to civil servants under the Standards in Public Office Act 2001 and the Civil Service code of standards and behaviour introduced last year in accordance with section 10(3) of the 2001 Act.
As Deputies are aware, the Standards in Public Office Commission oversees compliance with the ethics Acts in so far as they apply to office holders, that is, Ministers and Ministers of State, the Ceann Comhairle or Leas-Cheann Comhairle of Dáil Éireann, the Cathaoirleach or Leas-Chathaoirleach of Seanad Éireann, the Attorney General, ministerial special advisers, senior civil servants, etc. The commission is empowered to investigate complaints involving acts or omissions of the powers of these persons where a complainant considers that such person has acted in a manner which is inconsistent with the proper performance of the functions of his or her office or his or her behaviour is contrary to the maintenance of public confidence and the matter in question is one of significant public importance.
The Standards in Public Office Commission is also empowered to investigate complaints about alleged contraventions of the Ethics in Public Office Acts 1995 to 2001 regarding disclosure of interests and compliance with tax clearance requirements. As far as complaints are made, inter alia, by civil servants against other civil servants, the Act provides at section 5(1) that where a person makes a complaint to the commission in good faith, no cause of action shall lie against the person and no disciplinary action shall be taken against him or her as a result of reporting his or her concerns to the commission. Section 5(4) provides that a person who takes disciplinary action against a complainant in this context will be guilty of an offence and liable to a substantial fine.
In addition, the Act provides at section 5(3) that if a person is dismissed by his or her employer as a disciplinary measure because he or she reported a complaint to the commission, the dismissal will be considered an unfair dismissal for the purposes of the unfair dismissals legislation. This avenue of redress provides an additional protection for civil servants in light of the extension of the unfair dismissals legislation to civil servants, which the Bill effects at section 18.
Further strong protection is offered to civil servants under the Civil Service code of standards and behaviour which applies to all staff in the Civil Service. The code states that no civil servant must ever act in any way which he knows or suspects to be illegal, improper or unethical and that civil servants who have doubts about the legality of a particular action they are required to take in the course of their official duties should refer the matter to their superiors whose responsibility it is to issue a direction on the matter. The superiors in question are bound under the code by the same duties to act within the law as the officers who report to them and are subject to the same sanctions should they breach the instructions set out in the code.
In addition, as Deputy Burton is aware, a whistleblowers protection Bill is on the Government’s legislative programme and is being dealt with by the Department of Enterprise, Trade and Employment.
Mr. Parlon: Given the number of significant and complex issues which have arisen during consultation on the Bill, it would not be appropriate to address this matter in the context of the Civil Service Regulation (Amendment) Bill, the aim of which is to enhance the structures in place for managing civil servants. In light of the protection already provided by the Standards in Public Office Act 2001 and the Civil Service code of standards and behaviour and the fact that this matter is being dealt with in separate legislation, I cannot accept the proposed amendments.
Ms Burton: The Minister of State, not for the first time, is a profound disappointment. Does he even know when the Government claimed to accept the notion of a whistleblowers’ charter? At the beginning of this Dáil, the Labour Party succeeded in having the Bill reintroduced in the Government’s legislative programme but that was the last the House heard of it, which is unfortunate.
The Morris tribunal vividly described an atmosphere and a culture which were effectively corrupted within the Garda in County Donegal. From what has been said locally and nationally, many gardaí were concerned and deeply dismayed at the betrayal of the mission of the Garda Síochána evident in the McBrearty case. However, the absence of a powerful structure to encourage people with knowledge of wrongdoing to bring it to the appropriate authority in a responsible manner meant that the gardaí in question were not in a position to act on their concerns. Worse, as knowledge of the circumstances of the case rose through the higher echelons of the Garda administrative system, first in County Donegal and later at regional and national levels, those who had misgivings could not air them. As a result, a wrong became a corruption of the entire police service of a county. When that happens, all parties in this House, whether in Government or not, must look at what the judge recommended in his report to see what lessons we can learn. Clearly, a strong power that enables someone in the lower echelons of the public service to make due representations to an independent authority when he becomes aware of illegality or wrongdoing is necessary. None of the regulations referred to by the Minister of State was capable of addressing the corruption and wrongdoing that arose in Donegal as set out in the Morris report. It is deeply disappointing that the Minister of State is unwilling to address an issue that is so fundamental for our democracy.
Caoimhghín Ó Caoláin: These amendments seek to ensure we have a strong and confident public service. That should apply across the board, irrespective of the arm of the State where people are employed. Where there is a strong and confident public service, it is important that its writ runs through every level of the Civil Service, from the first rung to Secretary General.
If people in the public service see or suspect abuses in the carrying out of functions on the part of the public service, or misconduct that undermines either the effectiveness of the system or public confidence in it, it is an imperative that they come forward. The Minister of State’s injudicious jibes at me and my political views, which ill behove him, create associations we do not want to see for the important role that whistleblowers have and must continue to play in ensuring we have a Civil Service of which we can be justly proud. Nodding and winking about it will not change that and my support for our aims here is affirmed by the amendment and my contribution on it.
I take this final opportunity to appeal to the Minister of State to revisit the position he has been given in his script tonight. It is time for imaginative thinking that recognises the important role such people have. I would prefer a dedicated Bill to address this matter but in the absence of such a Bill we can only seek to amend appropriate legislation and this is an opportunity to do that. I urge the Minister of State to support the amendments.
Mr. Parlon: In terms of what applies here, we are talking about legislation for civil servants and Deputy Burton insists on talking about the Morris tribunal. The Garda Síochána Bill will deal with that.
Mr. Parlon: In terms of duplication, in my response I have clearly shown that legislation already supports whistleblowers and civil servants who choose to give information. There is no need for provision here. The legislation is on the cards, I heard the Taoiseach not long ago in the House give an answer to say that the whistleblowers Bill is on the programme and I hope it is expedited. Significant and complex issues have arisen during consultation that are delaying it but as soon as they are sorted out, the legislation will be introduced to deal specifically with the issue.
Ms Burton: The Minister of State is allowing an incredible loss of public confidence in our democracy. It is also a terrible waste of money because when wrongdoing in the public service festers, it poisons activity and often results in another tribunal at huge public cost. The unwillingness of the Minister of State’s party to accept a reform that exists in most European countries is disappointing. When we enter Government, we will ensure the outcome changes.
This issue was raised on Committee Stage. The section is flawed from a constitutional viewpoint. The section and the Bill allow for representations to be made but there is no requirement for anyone to have regard to such representations. The premise is that the mere allowing of representations satisfies the dictates of natural justice but that is not the case. To be constitutionally correct, there should be a requirement not only for representations to be made but any evidence adduced should require a response and be noticed. It is important that this amendment be accepted by the Minister of State and form part of the procedures of the Bill.
Caoimhghín Ó Caoláin: These amendments ensure fair procedures for civil servants. They are a straightforward proposal to write fairness into the legislation. A civil servant should not just be afforded but should also be guaranteed the opportunity of making a representation to the appropriate authority. The place for that guarantee is in the legislation. Civil servants must be guaranteed a fair hearing and it is incumbent on the Minister of State to accept these amendments.
As the Government is not prepared to guarantee fairness in the procedure by its inclusion in a clear and unequivocal statement in the Bill, it sends out a worrying signal to the Civil Service. Members of the Civil Service must be told that what they have to state will be taken into account. This amendment will strengthen the legislation and also confidence within the public service. It will also ensure that any disciplinary measures will be undertaken on a sound basis. The amendment is a protection of the rights of employees in the Civil Service. As it is not reflected elsewhere in the Bill, it is important that it is included at this appropriate juncture and that the guarantee of fairness is there for all to know.
Mr. Bruton: Fair procedure is essential and I expect it to occur in all cases. These amendments are reasonable and will not do any damage to the Bill. There is the expectation that fair procedure will always be applied in public service decisions. To ensure that these rights are protected, it should be provided, as proposed in these amendments, in law.
Mr. Parlon: Section 15 of the Civil Service Regulation Act 1956 provides for the imposition of disciplinary action in respect of civil servants. The Civil Service disciplinary code, which implements the 1956 Act, is set out in a Department of Finance circular. This is being revised in conjunction with the amendment of the 1956 Act. It will be negotiated with the Civil Service unions under the conciliation and arbitration scheme.
The code provides that an officer must be provided with a statement of the allegations made against him or her, all the evidence supporting those allegations and a statement of the proposed penalty if the allegations are substantiated. The officer is given an opportunity to respond to those allegations and may request a meeting with a personnel officer in order to discuss the case. Should the personnel officer subsequently decide that disciplinary action is appropriate, the officer may make written representations to the decision-making authority or request a review of the disciplinary proceedings by an appeals board prior to the imposition of the proposed sanction.
The appeals board comprises a senior counsel, a trade union representative and a Department of Finance representative. Appeals may be lodged on several grounds, including failure of the personnel officer to adhere to the disciplinary code, failure to ascertain all relevant facts of the case or to consider the facts in an unbiased fashion, failure to afford the officer reasonable facilities to answer the allegations against him or her or the punishment proposed is disproportionate to the offence committed.
Where the appeals board considers the case and finds that any of the grounds for appeal are substantiated, it may recommend that no further action be taken or that the personnel officer’s recommendation to the decision-making authority should be amended in a specified manner, such as, for example, in terms of reducing the proposed penalty. Under section 15(5) of the 1956 Act and paragraph 3.7 of the disciplinary code, every officer is given the right to make representations to the appropriate authority before any disciplinary action is implemented.
I am confident that the new code will replicate the strong emphasis which is currently placed on the protection of the rights of the individual officer, particularly in respect to access to fair procedures. I consider the reference in these amendments to a civil servant’s right to fair procedures is not required.
On Committee Stage, Deputy Burton stated that simply providing for officers to make representations to the appropriate authority without imposing upon it a requirement to have regard to those representations is not sufficient to satisfy natural justice dictates. She also stated that the legislation, if so drafted, would not meet reasonable constitutional tests. I have considered the Deputy’s contention and, following consultation with the Office of the Attorney General, I cannot accept her reasoning.
Mr. Parlon: The constitutionality of the current position under section 15(5) of the 1956 Act states an officer shall be “afforded an opportunity of making to the appropriate authority any representations he may wish to offer”. This has not been challenged up to now. It would be a perverse interpretation of the legislation to suggest that the provision of the right for a person to submit representations through a decision-maker does not impose a de facto duty upon the decision-maker to consider such representations.
A basic principle of fair procedure is that a person entrusted with a discretion, in this case whether to impose a disciplinary sanction, must consider all relevant matters and must exclude all irrelevant matters from his or her considerations. To suggest the text of the Bill confers no responsibility upon the appropriate authority to consider representations from the person whom the decision will directly affect is to suggest that the appropriate authority does not have to conform to this basic principle of fair procedure in deciding whether to proceed with disciplinary action. I do not accept this suggestion and, therefore, I consider it unnecessary to insert any further amendment to section 5(3). I do not accept the proposed amendments.
Mr. Howlin: The code of conduct is all very interesting. However, what is the legal status of the procedure to which the Minister of State referred? Creating laws is what the Oireachtas does. Codes and procedures are interesting, subject to negotiation and amendment, but do not come within the purview of the House. We are setting out the legal basis for the conduct of civil servants in public affairs and how they are disciplined.
Section 10(1)(a) contains serious sanctions that can be taken against a civil servant, such as placing him or her on a lower rate of remuneration, reducing him or her to a specific lower grade or rank or suspending him or her without pay. Section 10(3) states:
Deputy Burton’s amendment proposes to add “and regard shall be had to the civil servant’s right to fair procedures and to any representation made or evidence adduced by the civil servant”. What is wrong with that? It sits perfectly well with the case made by the Minister of State on the agreed code of procedures.
I can only conclude that the Minister of State is against it because it comes from this side of the House. There are Ministers who take the line that such amendments are unnecessary as they are covered in some other procedure. I am not interested in it being covered in procedure. We are making a law and it should be done in a fair and encompassing way to ensure that what the Minister of State claims is understood is explicitly stated. If the Minister of State is agreeable to the adherence of a civil servant’s right to fair procedures and that the appropriate authority should have regard to any representation or evidence adduced, then it must be stated in the legislation. The Minister of State has given no coherent reason that this amendment will cause any damage to the Bill. He has not explained how it is counter to the agreed procedures in operation or it is not what is intended. Why is he then opposed to it?
Caoimhghín Ó Caoláin: We all have a right to assume that due consideration and a fair hearing will always be adhered to. However, we also seek to guarantee those rights in legislation. This Government appears to be set against guaranteeing rights in legislation — with the recently passed Disability Bill being a case in point — and here we go again. Why is the Minister of State against guaranteeing people’s rights in law? This is a serious matter, as was the Disability Bill. We want all civil servants to be guaranteed a fair hearing when the situation presents. If this is not done and if the amendments and arguments presented are rejected, a worrying signal will be sent.
If I were a civil servant, I would be concerned if the Government refused to enshrine in legislation the simple guarantee — which should be a natural right in any event — to a fair hearing. I again join Deputy Howlin in appealing to the Minister of State to reconsider the position. If he does not disagree with it in principle and expects it to apply in practice, why does he not agree to include it in the text of this legislation? There is no explanation and nothing in his response to the initial arguments presented by either Deputy in any way explains why he would reject these amendments. I urge the Minister of State to reconsider and to accept them.
Mr. Parlon: As far as Deputy Howlin’s question regarding the legal status of the code is concerned, any circular from the Minister for Finance is given effect by the Civil Service Regulations Act 1956.
Mr. Parlon: Yes. As for the amendments’ purpose in guaranteeing fair procedures, clearly it is important, in terms of fairness, that we have a disciplinary code within the Civil Service. This is accepted by all sides. There are sanctions provided, such as deferral of an increment, which can be applied under the code. Some of the other issues must be agreed between the Civil Service’s human resources management and the Department of Finance.
In terms of balance, all sorts of mechanisms, such as the appeals board, exist of which people can avail if they have difficulties. As far as the issue of discretion is concerned, someone must make a decision as to whether a disciplinary action should be taken and how discretion should be used when considering relevant issues and representations. The provisions in this legislation are as fair as anyone could expect within any place of employment.
Mr. Howlin: I accept the Minister of State’s bona fides. I also accept that the procedures in the code are fair. That is why I am at a loss. Since the Minister of State agrees that there should be fair procedure, that regard should be had to representations and that there is a constitutional right to such procedures, why is he so opposed to including this in the statute? He has not given any reason, coherent or otherwise, as to why what he states is the case should not be made explicit in the Bill. Why does he oppose including in the legislation what he asserts has legal effect through a statutory instrument by way of circular from the Minister for Finance? Why should the latter not be placed in the Bill? I have not heard a shred of a coherent reason as to why this is the case.
The Minister of State indicated to the House that he agrees with the principle and with the proposals from this side of the House regarding fair procedures, that he agrees that there is a constitutional right for a civil servant faced with disciplinary proceedings which could — as I indicated in respect of subsection (1) — have serious consequences for him or her and his or her future. Why does he oppose accepting it? In the absence of any reason, coherent or otherwise, that we should not amend the legislation to be explicit in this regard, I must press the matter.
I suspect that this amendment will suffer the same fate as the previous two amendments. There ought to be a provision that where someone is dissatisfied with a decision, he or she should have the opportunity to seek an independent review. I do not know whether the guidelines which the Minister of State read into the record deal with the issue of an appeal of that nature. Perhaps the he can comment.
Mr. Boyle: Given the Minister of State’s enthusiasm for buying in expertise and the Government’s enthusiasm for the use of consultants, it would be strange if he were not willing to accept an amendment of this type to the effect that there should be an outside independent position in respect of a principle of natural justice, namely, that people should have the right to independent reviews of disciplinary decisions. On those grounds, Deputy Bruton’s amendment should be accepted.
Mr. Parlon: This Bill represents a significant step forward in the way in which staff are managed in the Civil Service. The Bill amends section 15 of the 1956 Act to provide, for the first time, that disciplinary action can be taken in cases of under-performance. In addition, this section broadens the range of disciplinary sanctions that are currently available to managers under section 15 of the Act. As a result of these amendments, the Act will deal with disciplinary issues in a more comprehensive manner than was previously the case.
The Deputy’s suggested amendment will duplicate arrangements in place under the disciplinary and grievance procedures in the Civil Service. As stated on Committee Stage, it is normal practice in employment law, and in line with codes of practice issued by the Labour Relations Commission in respect of grievance and discipline, to develop internal procedures and policies in negotiations with staff unions and to give practical effect to legislative provisions. Internal policies provide the detailed procedures which ensure that management maintains satisfactory standards of conduct and performance and that staff are provided with access to procedures whereby alleged failures to comply with these standards may be fairly and sensitively addressed. The Bill does not and should not deal with detailed procedures and arrangements entailed in the disciplinary procedures.
On Committee Stage, the Deputy pointed out that the Bill went a long way towards aligning the rights of civil servants with those of private sector employees. This is a clear and fundamental principle of the Bill, particularly in respect of dismissal, as it provides that civil servants have the same right to appeal in cases of dismissal as a person employed in the private sector through extending the scope of the Unfair Dismissals Act to civil servants. In respect of disciplinary issues, there are already clear and specific arrangements set out in the disciplinary code which have been agreed under the Civil Service conciliation and arbitration mechanisms.
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