Wednesday, 15 June 2005
Dáil Eireann Debate
Minister of State at the Department of Finance (Mr. Parlon): In respect of disciplinary issues, very clear and specific arrangements are already set out in the disciplinary code, which have been agreed under the Civil Service conciliation and arbitration scheme. This code is based on fair procedures and ensures that an accused officer gets a fair hearing and adequate representation, with access to an independent review. Additional protection is offered to staff under the grievance procedure, which is a process that seeks to deal with the complaints of individual members of staff.
The protections afforded to civil servants under these codes are certainly comparable to those offered to private sector employees who generally have access to an internal appeal and an independent external appeal in the form of the rights commissioner. Similarly, the Civil Service disciplinary code provides the right to an internal appeal mechanism and also to an independent appeals board.
As the Bill will amend section 15 of the 1956 Act, it will be necessary to take account of changes to the section of the Act in the Civil Service disciplinary code. Consequently, a new disciplinary code is being drafted, which will be discussed and agreed with the Civil Service unions under the Civil Service conciliation and arbitration scheme. The new code will continue to place strong emphasis on the rights of individuals and will retain the right of the individual officer to an independent appeal in line with good practice in the private sector.
For these reasons, I consider the disciplinary code and the grievance procedure negotiated under the conciliation and arbitration scheme are the appropriate mechanisms to specify the rights of individual officers to fair procedure. I am therefore unwilling to accept the amendment.
Mr. Bruton: The Minister of State seems to be developing a hybrid involving a mixture of internal guidelines for the regulation of disciplinary procedures within the public service along with the application of the Unfair Dismissals Act. To be consistent in that line, I would expect that the Minister of State would also introduce some new options for public servants to resort to the Industrial Relations Act or some of the other general labour Acts that protect employees. Why has the Minister of State decided to extend provisions on unfair dismissals, which is standard labour market practice but not extend to public sector workers other legislative protections, which are generally available to private sector workers? We will end up with a hybrid version with some reliance on internal procedures set out in guidelines and some reliance on the statutory code. My amendment would at least provide for statutory protection for the guidelines now in place. I ask the Minister of State to elaborate on the route he appears to be taking in this regard.
Mr. Bruton: Can the Minister of State explain the legal approach he is taking of offering some statutory rights of resort to the unfair dismissals procedure outside the code but not general resort to the industrial relations machinery that applies outside the code?
Following discussions with the Office of the Houses of the Oireachtas and the advice of the Office of the Attorney General, I have agreed to provide a separate part in the Bill, Part 3 — Houses of the Oireachtas Commission, to bring together a number of amendments which relate directly to the Office of the Houses of the Oireachtas Commission. In particular, this will set out the tenure arrangements for the staff of that office. The changes, which I am proposing will not result in any significant change to the current policy under the Bill, but will instead clarify the position on the dismissal arrangements for certain key Oireachtas staff, by retaining certain protections currently set out in the legislation affecting these staff. I will explain the background.
A process of consultation currently applies in respect of the dismissal of certain officers in the Houses of the Oireachtas, namely the Clerk of the Dáil, the Clerk Assistant of the Dáil, the Clerk of the Seanad, the Clerk Assistant of the Seanad, the Captain of the Guard and the Superintendent. This process is outlined in Acts of 1959 and 2003, which relate to the Office of the Houses of the Oireachtas. Under these Acts, a dismissal of established Oireachtas officers may only take place following a recommendation to the Government from the relevant Chairman, such as the Ceann Comhairle in the case of the Clerk and the Clerk Assistant of the Dáil, the Cathaoirleach in the case of the Clerk and Clerk Assistant of the Seanad and both Chairmen in the case of the Captain of the Guard and the Superintendent, following consultation with the Houses of the Oireachtas Commission. Following discussions with the Office of the Houses of the Oireachtas Commission and the advice of the Attorney General, I have agreed that the current process of consultation relating to these officers should be retained in the Bill in recognition of the independence of those officers.
The effect of the amendment will be to apply to dismissals in the Office of the Houses of the Oireachtas the principle of devolved authority, which is one of the central provisions of the amendment Bill, and at the same time retain the process of consultation which is already set out for these officers in the 1959 and 2003 legislation. The proposed amendment supports the significant changes which were introduced as part of an overall series of reforms envisaged under the 2003 Act which is aimed at having a more accountable and better resourced parliamentary system. One of the key aims of the Act is to provide for a handover of the authority and responsibility for the provision of services to the Houses of the Oireachtas and their committees to the Houses of the Oireachtas Commission. This new arrangement for the Houses of the Oireachtas is in line with arrangements in a number of other parliaments in the EU and elsewhere and reflects the constitutional doctrine of the separation of powers.
The amendment in this Bill is in line with the central thrust of that Act, which effectively transfers the authority and responsibility for the management of staff to the Houses of the Oireachtas Commission in a manner which is consistent with their constitutional position. The amendment will provide that the power to dismiss the Secretary General, who is also the Clerk of the Dáil, and the Clerk Assistant of the Dáil may be assigned by the Government to the Taoiseach, who may act on the recommendation of the Ceann Comhairle after consultation by him with the Houses of the Oireachtas Commission. Similarly in the case of the Clerk and Clerk Assistant of the Seanad, the dismissing authority may be also be assigned by the Government to the Taoiseach, who may act on the recommendation of the Cathaoirleach after consultation by him with the Houses of the Oireachtas Commission. In the case of the Captain of the Guard and the Superintendent, the dismissing authority will again be the Taoiseach, after consultation with the Chairman of Dáil Éireann, the Chairman of Seanad Éireann and the Houses of the Oireachtas Commission.
There is no change proposed for other officers within the Oireachtas, other than that the arrangements for them will reflect the new devolved management structures elsewhere in the Civil Service. This means that officers at principal officer level and above will be dismissible by the Houses of the Oireachtas Commission — the relevant Minister for the purposes of the Act — on receipt of a recommendation from the Secretary General of the Office of the Houses of the Oireachtas, while officers below that level will be dismissible by the Secretary General of the Office of the Houses of the Oireachtas. The proposed amendment therefore provides that the Government can assign the authority to dismiss specific officers in the Office of the Houses of the Oireachtas as envisaged under the Bill. In addition, it allows the process of consultation which is provided for under the 1959 and 2003 Acts to be retained. The amendment represents no change for the dismissal of the majority of civil servants within the Office of the Houses of the Oireachtas Commission, whose dismissals will in future be managed as envisaged under the Bill and in exactly the same way as other established civil servants.
The provisions which I have outlined will be given effect by the text of amendment No. 22, which amends section 20 of the Staff of the Houses of the Oireachtas Act 1959. A further consequential amendment arising out of the new part is to ensure that the Secretary General of the Office of the Houses of the Oireachtas is treated in the same way as other Secretaries General for the purposes of the Act. Section 10 of the Bill currently amends section 15(6) of the Act to provide that officers either holding a position to which they were appointed by the Government or holding a position as a Revenue Commissioner, are not subject to the disciplinary sanctions set out in section 15. Under the Staff of the Houses of the Oireachtas Act 1959 and the Houses of the Oireachtas Commission Act 2003, the Secretary General of the Houses of the Oireachtas is appointed by the Taoiseach on the recommendation of the Chairman after consultation by him with the Houses of the Oireachtas Commission. The office holder is therefore not automatically excluded from the provisions of section 15 in the way other Secretaries General are.
I propose to provide in section 15(6) of the Act for the explicit exclusion of the Secretary General of the Office of the Houses of the Oireachtas Commission from the measures set out in that section, in order to ensure that all Secretaries General are treated in a similar manner. It is necessary to make the technical changes provided for under amendments Nos. 11 and 12 to effect this change and to provide for the insertion of a new subparagraph (6)(c) into section 15 of the 1956 Act.
The remainder of the amendments in this grouping are technical and are needed to give effect to the provisions which I have set out here. Amendment No. 19 deletes the current section 14 of the Bill which provides that the dismissal of a member of staff at the grade of principal officer or above shall only be on the recommendation of the Secretary General. This provision is now replicated as part of the new Part 3 of the Bill. Amendments Nos. 21 and 22 delete the existing sections 15 and 16 of the Bill, while amendments Nos. 23 and 24 are required to move the existing sections 15 and 16 of the Bill and replicate them in the new Part 3 of the Bill.
Mr. Bruton: Heretofore, it was the Government rather than the Taoiseach that had the authority to dismiss people from these positions. Will it now be a personal matter for the Taoiseach rather than the Government? Why is that change being made? I am not an expert in the legal thinking behind this. Was there consultation with all the individuals who might be affected by this change? What has been the response to those who are affected by the change? The House should be able to consider their views as well as those of the Minister. This is an unusual procedure as he is resubmitting an amendment on Committee Stage, but today is the last day for deliberation on the Bill. The House needs to hear a little more of the consultation that has gone on and the reasoning behind the change so we can be satisfied it is robust.
Mr. Howlin: It is happenstance that I am substituting for my colleague, Deputy Burton, but I am very interested in this matter. I support strongly the idea of devolving power away from the Executive regarding the affairs of the Oireachtas and handing the power over to the Oireachtas itself. However, the original Houses of the Oireachtas Commission Act 2003 is lacking in a number of areas and was not robust enough. The Department of Finance loosens its grip slowly and there are overlaps in authority between the Department and the Houses of the Oireachtas Commission when making positive decisions on staffing matters. It is quite outrageous that a relatively junior official in the Department of Finance, such as a principal officer, can second guess the decision of the Oireachtas Commission, including the Ceann Comhairle. That is not good and it should not remain that way. There should be an oversight on public spending, but once the spending envelope is voted by this House, there should be complete discretion given to the House on how staffing is organised. However, that is for another day.
Was there any discussion with the Houses of the Oireachtas Commission on these proposals? The powers to dismiss senior officials in the Houses of the Oireachtas are to be devolved to the Taoiseach. Why is this the case? The Government currently has the authority to do so. If the devolution of authority to the Houses of the Oireachtas is to be effected, then surely the person in authority in this regard should be the appropriate Chairman of each House. According to the amendment, the Taoiseach is to act on the recommendation of the Chairman. Is such a recommendation binding or is there a discretion conferred on the Taoiseach? If it is binding, why is the Taoiseach allowed to exercise the authority rather than the Chairman of each House, as appropriate, acting on the advice of the Houses of the Oireachtas Commission? We require clarity on these important issues before we proceed with the debate.
Mr. Boyle: I am conscious in seeking clarification and debating amendments that we are discussing an office the Minister of State holds outside the Chamber on behalf of the House which will be held ex officio by his successors. Having said that, perhaps the Minister of State can answer the question Deputy Howlin posed on the reasoning behind many of the changes under discussion. In his original contribution, the Minister of State claimed that he sought to protect the constitutional principle of separation of powers, a goal the validity of which every Member accepts. However, if one is talking about direct responsibility falling to a member of the Executive or being exercised on its behalf, questions must be asked as to how that entails a separation of powers. If anything, it represents a reabsorption of powers up the line rather than their wider distribution on behalf of the House.
Curious wording is used in the Bill to describe those positions for which the Taoiseach is the appropriate authority. It is provided that the Taoiseach can act in respect of the Clerk or Clerk Assistant of the Dáil on a recommendation and following consultation. The Minister of State might take the opportunity to clarify to what extent a recommendation shall be made. Will it be done formally or informally? What is meant by “consultation”? Will a consultation be a formal process in its own right? If, following consultation, it is clarified that a person should or should not be removed from a post, will it remain within the remit of the Taoiseach to revisit a decision? When the power reverts to the Taoiseach, will the officeholder be able to exercise it unilaterally to ignore a consultation process and insist that a person should lose his or her position? If that is the case, many will feel such a power should not rest with the Taoiseach.
There will be many in the Civil Service who are unhappy that a Bill which deals with the service in its totality treats some civil servants differently from others. The general principle of separation of powers, however, is what makes the case for the approach. The Minister of State must explain the extent to which powers can and should be exercised by the new Houses of the Oireachtas Commission or officers acting on its behalf. If there is a difficulty, should not the Houses of the Oireachtas Commission legislation be strengthened, as Deputy Howlin has already suggested, to clarify legally the principle that the Houses should take care of their responsibilities?
Mr. Parlon: At issue is the hopefully very unlikely event of the dismissal of the Captain of the Guard or Clerk of the Dáil. The positions are being brought under the arrangements on Secretaries General. The equivalent grade to Secretary General within the Houses of the Oireachtas is Clerk of the Dáil. The Taoiseach is the appointing authority in respect of the Clerk of the Dáil or Seanad or Captain of the Guard, in consultation with the Ceann Comhairle or Chairman of the Seanad, and it is appropriate, therefore, that he should be the dismissing authority also.
Mr. Parlon: It is in line with the Act and requires consultation with the Ceann Comhairle or, in the case of the Clerk of the Seanad, the Chairman of the Seanad. The provisions accord with existing legislation. As it is not appropriate for the Government to decide on the dismissal of a reasonably junior civil servant, the power will be devolved to Secretaries General. In the event of a requirement to dismiss a Secretary General or other senior officer, power will rest with the Minister or, in the case of the Oireachtas, with the Taoiseach, following consultation, as appropriate, with the Ceann Comhairle of the Dáil or Cathaoirleach of the Seanad.
Mr. Bruton: An issue on which clarification is being sought is the degree to which the Taoiseach has discretion. Will he be bound by the views of the Chair of either House or will he have discretion to deviate from their advice? According to the Minister of State, the appointments in question are made by the Taoiseach. I have not seen reference to such a provision in this or existing legislation in this area and presume it is a new measure. Is the provision set out in the Houses of the Oireachtas Commission Act?
The issue centres on whether the Taoiseach’s role is that of a rubber stamp for the sake of legal convenience. If that is so, what is the legal convenience which requires the Taoiseach to act as the appropriate authority rather than the Houses of the Oireachtas? If the Taoiseach is more than a rubber stamp, what will limit his discretion to go beyond the actions recommended to him? Why are we deciding to refer to an outside individual and why does the Minister of State believe the authority should be vested in the Taoiseach rather than the Government?
While authority rests with a Minister in respect of general service grades above principal officer, it rests with the Government in respect of the heads of scheduled offices. A different approach is being taken to senior grades in the Houses of the Oireachtas, in respect of whom the Taoiseach alone is the appropriate authority. He will act, however, on the recommendation of the Ceann Comhairle or Cathaoirleach. I am not entirely clear why, if an outside authority is needed, the Taoiseach rather than the Government is required to be involved in the circuit or why the Houses of the Oireachtas should not be responsible for its own affairs.
Mr. Howlin: The last response of the Minister of State confused matters more. The statute says “on the recommendation of the Clerk of the appropriate House” whereas the Minister of State said the Taoiseach would act after consultation with the Chair of the appropriate House. It is a different thing.
Mr. Howlin: Will the Taoiseach act, as the statute says, on the recommendation of the Clerk? As I asked originally, is a recommendation binding or discretionary? It is a question which has been posed by others since.
Why involve the Taoiseach? If we are serious about the separation of powers, why is the Oireachtas not master of its own destiny in the management of its senior staff? There is a difficulty in the approach set out as one of the functions of the Houses is to hold the Government to account. As the procedures operated in the Houses are sometimes advised by the very people who will be subject to the provisions, it is not desirable to provide that the senior officers of the Houses can be dismissed by the head of the Government we are charged to hold to account. For Parliament to work transparently and best practice to be imbued in its workings, it is important that it is seen that the Government cannot sack anybody in regard to the operation of the House, only Parliament itself, acting through its commission or another mechanism that is within the overview and control of Parliament. I hope that is the direction in which we are moving. I do not understand why there is a need to have the Taoiseach involved in this.
The Minister of State’s reasoning is that under a different statute the Taoiseach appoints these officers. I would prefer an amendment to the effect that the commission would appoint senior members of staff on a consensus basis through the Members of the House and through our own procedures. That is the direction in which we should be heading, rather than still giving a role to the Executive qua Executive or worse still to the Taoiseach qua Taoiseach to hire and fire these most senior officials of the Houses of the Oireachtas, if Parliament is to be sovereign and independent of the Executive as the Minister of State said the Constitution requires. We must nail down these issues.
Mr. Boyle: I too have further questions, first about the consultation that has taken place. The Technical Group and my party are not directly represented on the Houses of the Oireachtas Commission. Am I to take it from what the Minister of State said today that——
Mr. Boyle: He has to, as he is our only conduit. No one in this House represents us. The Minister of State has indicated that the consultation in regard to these provisions has taken place with a member of the commission who has a representational role on behalf of the Government parties. Can he confirm if direct and wide ranging consultation has taken place with the commission itself? If it has not, this process deserves further consideration. That consultation should be ongoing.
Some of the provisions relate to a recommendation followed by consultation. One provision in particular relates only to consultation about the possible dismissal of the Superintendent and Captain of the Guard of the Houses of the Oireachtas. What constitutes consultation under these provisions which refer to the Taoiseach informing the Ceann Comhairle or the Cathaoirleach? Would the mere statement that a course of action is to be followed constitute consultation? Does consultation mean there must be some level of agreement or approval for the action being proposed? Who would initiate the action? Would it be the Taoiseach? Would the initiation be done through the House or the Office of the Ceann Comhairle or the Cathaoirleach? This is very unclear in section 20(1)(c). I would like the Minister of State to provide more clarity.
Mr. Parlon: In terms of consultation with the Ceann Comhairle, what I said is that the amendment will provide that the power to dismiss the Secretary General, who is also the Clerk of the Dáil, and the Clerk Assistant of the Dáil may be assigned by the Government to the Taoiseach, who may act on the recommendation of the Ceann Comhairle after consultation by him with the Houses of the Oireachtas Commission.
Mr. Parlon: The issues we are considering were debated during the passage of the Houses of the Oireachtas Commission Act 2003. We have virtually replicated the arrangements which were put in place for both appointments and dismissals with the intention of reflecting the separation of powers, with which we all agree. We initially proposed to the Oireachtas commission that it would take the decision but the commission requested that the Taoiseach would take it.
Mr. Parlon: In other Departments there is a clear responsibility on the part of the Secretary General to his line Minister. It is not quite as clear in this situation. The Oireachtas commission has been recently appointed and it suggested and recommended that the Taoiseach would be the individual with this responsibility who would act on the recommendation of the Ceann Comhairle.
Mr. Howlin: I am not aware of any such recommendation coming from the commission. I accept that the Ceann Comhairle is precluded from intervening but he might be able to clarify this matter. I am certainly not aware of any such recommendation or discussion taking place at the commission. The net issue is that the Minister of State is now indicating the discretion will reside with the Taoiseach to hire and fire the senior officials of this House. That is not in the spirit of the separation of powers. I seek further clarity because what the Minister of State read out is not what is stated in amendment No. 19, which proposes the insertion of a new section 20 into the Staff of the Houses of the Oireachtas Act 1959.
Mr. Howlin: I am sorry. It is section 19, amendment No. 22. I beg your pardon. The new section 20(1)(a) of the 1959 Act would read: “In the case of a person who holds the office of Clerk or Clerk Assistant of Dáil Éireann, by the Taoiseach on the recommendation of the Chairman of Dáil Éireann, following consultation by that Chairman with the Houses of the Oireachtas Commission”. The question I asked was if that recommendation was binding on the Taoiseach but the Minister of State has said that the Taoiseach may act. That is not in the section, or is it? Section 20(1) states, “May as respects an established civil servant be exercised”. The power may be exercised by him on the recommendation of the Ceann Comhairle, which implies there is a discretionary power. Is the Minister of State confirming that after this amendment to the 1959 Act has been agreed, there will reside a discretionary power where in the unlikely event of firing — but we are obviously preparing for every eventuality — one of these most senior officials of the House on the recommendation of the Houses of the Oireachtas and the commission, such a recommendation is handed on to the Taoiseach. The actual decision resides with the Taoiseach alone. That is not good separation of powers. It leaves too much discretion with the Taoiseach. I ask the Minister to think again about that.
Mr. Boyle: I asked two specific questions neither of which were answered. One related to the degree of consultation that took place with the Houses of the Oireachtas Commission, and what is meant by direct consultation with the Ceann Comhairle and the Cathaoirleach, especially in regard to the position of the Captain of the Guard and the Superintendent. Does consultation mean that a decision is reached and acted upon or does it mean that prior consent is reached and is acted upon? It is not clear in the amendment.
Mr. Bruton: I do not understand why the Oireachtas commission has decided this is the appropriate route. The Minister of State appears to be acting on the basis that a consensus has emerged following consultation.
Mr. Bruton: I do not understand why this would be the consensus. Why would the authority not rest with the chairman and the Oireachtas commission itself? I do not know whether the chairman or the Houses of the Oireachtas Commission is responsible, but I would have thought they would comprise the ultimate authority if there were to be a separation of powers. However, the Minister of State is stipulating that the Government is the ultimate authority. It may choose to delegate its responsibility to the Taoiseach, who may or may not act on the recommendations and consensus emerging from the Oireachtas. This seems to be a very strange way to run a railway.
Perhaps the Minister of State was not privy to the consultation on this issue. From what he is saying, I have not gained an understanding of why this is the route we are taking. It may be that the commission did not want the power, thus resulting in the circumstances that now obtain. This is not entirely satisfactory given that we are on Report Stage and there will be nothing more we can do if we agree to the provisions today.
Mr. Howlin: I am a member of the commission and I was not informed. There was never a discussion on this issue. I may be breaching the protocols of the commission and I apologise if that is the case. What was the method of communication?
Mr. Parlon: As I understand it, Deputy Brian Lenihan would have informed and discussed the matter with the Houses of the Oireachtas Commission. I am not sure whether he did or whether Deputy Howlin was available. I do not know that.
On the question of the involvement of the Taoiseach, if a Minister must make the final decision to dismiss his Secretary General, I am sure he will consult widely to inform himself fully and make his decision based on all the conditions we have laid out in the legislation. The Minister is not entitled to dismiss his Secretary General unless he has very good grounds for doing so. We have dealt with fair procedures and the means of redress available to avoid dismissal.
Mr. Bruton: I accept that is how the Minister of States understands it but I do not understand the rationale for including the Taoiseach. Perhaps the Minister of State was not present during the consultations——
Mr. Howlin: We are at an impasse regarding this matter. We seem to be putting in place a procedure with which nobody is in agreement. No reason is being put forward by the Government side other than that the procedure was apparently agreed by the commission. I am at a loss to understand why the commission would not want to exercise its authority. I believe it would. The commission, from its inception, wanted to push its boundaries to control the affairs of the Houses and remove Executive input in this regard. That is my judgment call on the matter.
Perhaps the issue was discussed in my absence or there was consultation to which I was not privy but I am not aware of it. Since no compelling reason is being put forward by the Government side for putting this procedure in place, and given that the Opposition is certainly at a loss to understand how it would serve the purpose of the separation of powers, will the Minister of State reconsider it?
Mr. Bruton: Perhaps the matter could be resolved in the Seanad by way of an amendment. In the meantime, it could be clarified. It would not take long for this House to rubber-stamp the legislation if the matter were resolved in the Seanad.
Mr. Boyle: I support that proposal. The Minister of State has answered one of my questions by revealing he does not know whether consultation has taken place, but he has still not answered my second question regarding his understanding of what the Bill means by consultation with the Office of the Ceann Comhairle and the Cathaoirleach regarding specified positions under these amendments. Is the process one that can be started by the Taoiseach, after which the officeholders can be informed, and then acted upon? What is the quality of consultation? Can it be defined in this Bill?
Mr. Parlon: On the quality of consultation, I do not know the quality of discussion within the Houses of the Oireachtas Commission. However, the procedure was discussed with the Minister’s representative, Deputy Brian Lenihan, and, through him, no issue was found to arise. That is my understanding.
Mr. Howlin: Is the Minister amenable to the suggestion that the legislation be amended in the Seanad? I do not want to discuss the level of consultation as it might best be dealt with privately. However, procedurally the commission will have to determine how its views are conveyed to Government. That will be a matter for ourselves. It would not be appropriate to have a public discussion thereon. Until the view of the commission regarding the relationship with the Minister becomes clear, I ask that the Minister of State accept the deferral of this group of amendments until the Seanad has had a chance to reflect on the matter. When it has done so, we will happily deal with it in this House before the end of the term. This would be an appropriate way to deal with it.
Mr. Parlon: We base the power to dismiss on the power to appoint in this case. The Houses of the Oireachtas Commission agreed with these arrangements for consultation in the course of dealing with the 2003 Act and, additionally, agreed that the Taoiseach would be the appointing authority for the Houses of the Oireachtas Commission. This is why we have devolved——
Mr. Parlon: The Act decreed that the Taoiseach be the appointing authority. The commission agrees that the Taoiseach should also be the dismissing authority. This is why such provision is being made in this Bill. The commission has no difficulty with the establishment of the Taoiseach as the appointing authority in the 2003 Act. It is also saying the Taoiseach should also be the dismissing authority.
Mr. Boyle: Why is the Minister of State reluctant to accept Deputy Bruton’s proposal to refer the matter to the Seanad? It seems eminently sensible. We are prepared to facilitate re-examining these issues once we obtain further information in respect of the Houses of the Oireachtas Commission.
These are significant changes in human resource management which will impact on the disciplinary procedure in the Civil Service. They provide that each Secretary General or head of a scheduled office will be responsible by virtue of being the appropriate authority for managing all matters pertaining to appointments, performance, discipline and dismissal of civil servants below principal officer level. Each Minister will be the appropriate authority for civil servants at and above principal officer level. Disciplinary action may be taken in cases of under-performance. The range of possible disciplinary sanctions will be broadened to include suspension without pay. Civil servants as office holders, other than those dismissed by Government, will be brought within the scope of the Unfair Dismissals Act and the Minimum Notice and Terms of Employment Act. In order to reflect these changes, a revised disciplinary code is being drawn up. It will be negotiated and agreed with the Civil Service unions under the Civil Service conciliation and arbitration scheme and will replace the existing disciplinary code.
A number of specific provisions are set out in the legislation, which will be included in the disciplinary code, for example placing the civil servant at a lower rate of pay or reducing him or her to a lower grade or rank. Additionally, the code will contain a number of penalties that are currently being agreed under the Civil Service conciliation and arbitration scheme, for example formal verbal and written warnings, deferral of an increment and debarment from specified competitions or from promotion for a specified period of time, withdrawal of concessions and allowances, and transfer. The Office of the Attorney General has advised that legal authority be provided for any penalties included in the code agreed with the staff side, but which are not specifically spelt out in the legislation. The insertion of this provision in section 15 of the 1956 Act will allow for the creation and the application under the new disciplinary code of less serious sanctions than those set out in the legislation such as, for example, formal verbal and written warnings. This will be negotiated and agreed with the Civil Service unions under the conciliation and arbitration scheme.
Mr. Bruton: I presume the amendment is in order. I understand the Minister of State is saying that while these provisions will be without prejudice to other parts of the Civil Service disciplinary code, that code in itself is being renegotiated in the light of these new powers. Against that background it appears to be not unreasonable.
An Ceann Comhairle: Amendment No. 14 arises out of proceedings on Committee Stage. Amendment No. 15 is consequential and amendments Nos. 16 and 16a are alternatives. Amendments Nos. 14 to 16a, inclusive will be taken together, by agreement.
Amendments Nos. 14 and 15 are technical amendments put forward by the Office of the Attorney General. These relate to sections 11 and 12 of the Bill which amend sections 19 and 16 of the 1956 Act, respectively. In the interests of continuity I propose to reverse the orders of sections 11 and 12 so the Bill will amend sections 16 and 19 of the 1956 Act in the correct sequence. This correction of the Bill will be effected by amendment No. 14, which deletes the current section 12. A further provision, amendment No. 15, will re-insert that text above the current section 11, thereby renumbering the text currently at section 11 as section 12. Amendments Nos. 16 and 16a propose changes to section 16. Section 16 of the Civil Service Regulation Act 1956 currently provides that an officer shall not be paid remuneration in respect of any period of unauthorised absence from duty. It provides that if any question arises as to whether a particular period of absence from duty is a period of unauthorised absence, the question shall be determined by the appropriate authority. There was much debate on this issue on Committee Stage, and before I respond to the amendments proposed by Deputies Bruton and Burton it is important to clarify a number of points.
The need to amend this section arose following a High Court ruling on 8 July 2003 in a case involving staff of the Department of Agriculture and Food. The court found that the refusal to perform certain duties in the context of that industrial dispute did not constitute an unauthorised absence from duty within the terms of section 16 as long as the staff concerned were physically present in the workplace, even though they were not carrying out their duties. The court also decided that management could not use the current section 16 of the 1956 Act to remove from the payroll officers who refused to perform core duties appropriate to their grades. The High Court ruling was upheld in an appeal to the Supreme Court by the Minister of Agriculture and Food and the Minister for Finance. In the light of this the Bill was amended on Committee Stage in order to provide in the 1956 Act the power to remove from the payroll officers who refused to perform the full range of duties of their grades. The amendment does not change the provisions in relation to situations where there is a physical absence from the workplace. The existing position is that a civil servant is not paid for a period where there is unauthorised absence from work due to industrial action or where a person is not on annual leave, sick leave or other forms of leave which have been approved. The amendment does not give management any new powers as regards circumstances of this kind involving a physical absence from the workplace. It is designed to deal with a situation where a person is physically present in the workplace, but refuses to perform his or her duties as part of a campaign of industrial action. This may arise where the industrial action involves a refusal to perform certain duties while remaining in the workplace.
Until recently, the understanding, based on legal advice from the Office of the Attorney General, was that the reference in section 16 of the Civil Service Regulation Act 1956 to “an unauthorised absence from duty” covered the situation where a person was physically present in the workplace, but was refusing to carry out his or her duties. However, the recent decision means clarification is required. Following consultations with the Office of the Attorney General the text was included, on Committee Stage. Concern was expressed on Committee Stage regarding the penalties provided for under the amendment. The amendment provides only for temporary removal from the payroll for the period of the refusal to carry out the duties of the grade. It does not provide for any other penalties. This is an important point because the High Court judgment in the Department of Agriculture and Food case indicated that action should have been taken under section 15 of the Act. If such a situation were to again arise, and section 16 remained as currently drafted, management would otherwise be required to impose penalties arising from disciplinary action.
It is also important to confirm that the Civil Service unions were informed of the proposed amendment and that no objections were raised. As regards the proposed amendment, it is important to emphasise that the text which I am proposing echoes the original section 16(2) of the 1956 Act, in allowing the appropriate authority discretion in deciding whether an action or omission of an officer shall amount to an unauthorised absence. Any decision as to whether an officer has reasonable excuse to refuse to carry out certain duties is therefore a matter to be considered by the appropriate authority in the context of making a decision as to whether an officer is taking an unauthorised absence from work. Should the officer dispute the decision taken by the appropriate authority, he or she has the opportunity to consult with the representative trade union and to make representations to the appropriate authority on the matter. The proposed amendment is intended to deal with a situation arising from industrial action. A civil servant refusing to perform duties as part of industrial action, is likely to consider that he or she has a reasonable excuse for so doing, in industrial relations terms. Equally, it is reasonable for the employer to stop paying the civil servant while the industrial action continues.
In addition, it is a fundamental principle of administrative law that one may assume the powers conferred by statute are to be exercised in a manner that is consistent with constitutional rights and principles of fair procedure. Any attempt by a decision making authority to thwart those principles will be considered ultra vires, that is, outside the powers bestowed on that decision maker by the statute in question.
Finally, I want to address the proposal that there should be an appeal against the decision of the appropriate authority. It is not feasible to provide for a formal appeal mechanism before removal from payroll, as management must be able to act quickly. Otherwise the employer would be unfairly disadvantaged in an industrial action situation. The reality is that there can be an appeal after staff have been removed from the payroll, and restoration of pay can be sought. There is no need for specific provisions for this to be made in the legislation as there is nothing to prevent representations being made to the appropriate authority by unions or staff about removal from payroll. Where a person feels that a decision maker has exercised his or her powers in an unreasonable manner, it is, of course, open to unions or staff to seek a judicial review. This avenue is open to officers who wish to have the decision of the appropriate authority reviewed by a third party, should resolution not be possible through the internal mechanism I have set out. All of these forms of appeal may be taken only after staff have been removed from payroll, while still allowing staff to respond quickly to industrial action. In the light of these points I do not accept the proposed amendments Nos. 16 and 16a.
Mr. Bruton: While I accept most of the Minister of State’s arguments, the position remains unclear in respect of an application for a review of a decision once an industrial dispute ends. The Minister of State appeared to indicate that a mechanism would be available to allow a person to appeal a decision following a dispute but it was unclear what form it would take. He then referred to the use of applications for judicial review, which are not a satisfactory instrument for appealing decisions of this nature. Did I miss a link in the Minister of State’s contribution? Will a person adversely affected by a decision who believes the appropriate authority wrongly interpreted a case have an opportunity, under the Civil Service code to which the Minister of State referred, to access an internal appeal process?
The only outstanding issue is the need to ensure that individuals have a reasonable right to question an interpretation which may have been taken by a superior in deciding that a person was involved in an industrial action. It appears that no proper appeal procedure is available after a decision has been taken.
Mr. Howlin: While I understand the logic of the Minister of State’s comments and accept the thrust of his intentions, he has taken an odd approach to this issue. If his amendment is accepted, the section will read: “A period when a civil servant refuses to carry out the duties of his grade shall as respects the civil servant concerned be considered to be a period of unauthorised absence from duty.” Rather than engaging in the pretence that a person is determined to be absent if he or she is not doing precisely as instructed, surely it is possible to provide that failure to do one’s duty is a breach of discipline. However convenient the provision may be in terms of dovetailing with existing legislation, it appears to be a bizarre device in providing that a civil servant who does not do precisely as instructed — he or she could be doing other things — is deemed to be absent from duty.
If the Minister of State chooses to take the route outlined in his amendment, will he explain his reasons for choosing this option rather than the more logical approach of simply creating a disciplinary issue for not obeying an instruction? If he adopts this approach, a saver clause will be necessary, such as that proposed in amendment No. 16 in the name of Deputy Burton which proposes to insert after the word “refuses” on page 13 the words “without reasonable excuse”. There may be reasons other than those cited by the Minister of State for not carrying out an instruction. For example, an instruction could be improper or health reasons such as exposure to stress could arise. As the recent debate on health and safety legislation demonstrated, a worker may have a myriad of lawful reasons for refusing to take a certain action, including, for example, a belief that it will put him in physical or psychological danger or expose him to undue stress. If the Minister of State proceeds on the route he mapped out, a saver clause such as that proposed in amendment No. 16 is required, notwithstanding the availability of appeals mechanisms under the normal agreements with the trade union movement.
Mr. Boyle: I, too, accept the thrust of the Minister of State’s argument regarding amendment No. 14. The renegotiation and restructuring of the Civil Service-wide code of practice provides a good opportunity to explain the position with regard to civil servants who have been suspended or temporarily removed from the payroll. Are they subject to the same conditions as those who leave or retire from the Civil Service through a formal process in terms of acquiring other types of remuneration or employment? I have in mind a specific case arising from the Moriarty tribunal and reported in the media yesterday of a senior civil servant who, following retirement, worked for a person about whose tax affairs he had previously made a favourable decision. What will be the position of a person who has been removed from the payroll, forced to leave or temporarily suspended from the Civil Service as regards working with persons on whose affairs he or she has made or will make decisions in the course of his or her normal employment? The Bill is unclear in this regard.
The current code provides that two years must elapse before a civil servant who leaves a senior position may take up a position in the private sector. We are entering a new phase in that we are legislating for temporary absence and cases involving people who have been dismissed rather than retired from their positions. In any case, the two year period between leaving the Civil Service and taking on a new position is much too short and should probably be extended to five years. Will the Minister of State indicate the Government’s position in this regard? Does the legislation address the issue?
I am uncertain as to the reasons the Minister of State believes amendments Nos. 16 and 16a compromise his proposal, given that both amendments appear to strengthen his position by reaffirming the need for independent arbitration when decisions are taken. As Deputy Bruton indicated, it is possible that he has been unable to identify the internal process available to those who have been removed from the payroll. An internal mechanism is not, however, the type of process required by natural justice. Independent third party arbitration is needed for decisions of this nature. Will the Minister of State provide greater clarity as to the internal mechanisms which exist and whether they can be considered independent?
Mr. Parlon: As I stated, we have learnt from the court judgment, subsequently appealed to the Supreme Court, which ruled that, under section 16 of the current Act, the Department may not remove from the payroll staff who are physically present in the workplace, even if they are not performing their duties. This is an unsatisfactory position. As Deputies will recall, the case in question involved individuals in the Department of Agriculture and Food whose duties were to issue payments to farmers. While they may have carried out other duties and been present in the workplace every day, they did not issue cheques. They knew their action would produce a reaction and ministerial involvement to resolve the issue. The outcome of this court case is the reason the wording included in the amendment specifically covers the requirement on individuals to fulfil their duties.
On the issue of appeal mechanisms, while persons removed from the payroll have no right to appeal at the point of removal, thereafter they have the right to make representations to the appropriate authority, whether a trade union or staff. They may also raise matters at special meetings of the conciliation and arbitration scheme. The Bill, therefore, affords a right of appeal and provides two different avenues to seek redress. I am sure any ongoing industrial dispute will be taken into account when decisions are taken on the actions of individuals. It is important that the appropriate Departments should be entitled to remove people from the payroll to provide sanction on them if they are not carrying out their full duties.
Mr. Parlon: A civil servant refusing to perform duties as part of industrial action is considered to have a reasonable excuse for so doing. Equally, it is reasonable for the employer to stop paying the civil servant while the industrial action continues. The absence of duty line in the Bill reflects the decision of the court and means that job holders who are not carrying out their duties have some redress. The best advice we have arising from the court decision is that our terminology on the absence of duty is sufficient.
Mr. Howlin: The Minister of State is going his own way and I will not delay the House by taking issue with him. It is always dangerous, however, to craft law according to one case. The section will apply where someone is not carrying out the duties assigned to him by way of industrial dispute or protest but it applies in other areas as well. That is the nature of drafting statute. There should be a saver clause because the refusal to carry out an instruction when it will put a person at risk, leave him open to bullying or the instruction is improper should be entertained and that is why I suggested it.
The Minister of State’s difficulty with the saver clause is that it might be a reasonable excuse to follow the instruction of the trade union, something with which I agree. That said, the wording in the Bill is so narrow as to leave the possibility of sanction for people who have decided not to carry out an instruction for a proper reason other than following the instructions of a trade union in an industrial dispute. I am concerned about the baldness of the wording without the saver clause.
Mr. Boyle: Perhaps I should submit my questions in writing because I am not getting any answers. I will rephrase my last question for the Minister of State. Has any consideration been given in the review of the Civil Service code to extending from two years to five years the period after retirement, and now after dismissal from the Civil Service, after which people can enter employment in the private sector related to the decision making in which they were involved as civil servants? Does this Bill offer any safeguards for people who find themselves temporarily removed from the payroll because of disciplinary procedures and who subsequently seek remuneration outside during a prolonged period of absence where such remuneration does not compromise the work they do within the Civil Service?
Mr. Boyle: What about dismissal? Will the code apply to people who are dismissed from the Civil Service so that they must have a period away from related employment in the private sector? It is the same principle.
Mr. Boyle: It applies to the Bill in general. We are talking about mechanisms by which people can be dismissed from the Civil Service and I am asking if the provision in the code that applies to retirement also applies to people who are dismissed from the Civil Service.
Mr. Parlon: We are not prepared to accept Deputy Howlin’s amendment for the reasons I have given at great length. I see where he is coming from but we are satisfied that we have gone as far as possible on the issue.
This is an anti-bullying measure that was discussed at length by Deputy Burton on Second and Committee Stages. It is an extremely serious issue that involves every workplace. We cannot assume any workplace is free of bullying and we need not only clear guidelines and working practices but anti-bullying measures in statute law. There is a code of conduct and a code of practice and people have addressed the issue of bullying in the Civil Service in a serious and structured way. If we are serious about the issue, however, we should refer to it in the statute and be clear that it has the force of law, not just a code of conduct. I hope the Minister of State has had the opportunity to reflect on the matter since Deputy Burton first alluded to it on Second Stage and that the amendment will be accepted.
Mr. Boyle: I support the amendment. It is important that a signal is sent out when the Bill is passed. Unfortunately, we see incidents of bullying with unacceptable frequency, with psychological bullying and intimidation where people feel their prospects of advancing in their careers are being hindered. It is important that a statement of this nature is included. Bullying is becoming especially prevalent within semi-State bodies and we must send this message out clearly in a legislative form.
Mr. Parlon: The Civil Service, since May 2000, has operated a comprehensive policy on harassment, sexual harassment and bullying, entitled A Positive Working Environment, which was agreed with the Civil Service unions. The policy emphasises the right of every employee to carry out his duties free from any form of harassment, sexual harassment or bullying and commits the Civil Service to the development and maintenance of a working environment where all employees are treated with respect and dignity. The detailed policy document emphasises the responsibility of managers in ensuring that all staff are made aware of and comply with the policy and outlines the appropriate courses of action to be taken where a complaint of bullying and-or harassment is made by an officer.
The policy provides for the investigation of complaints by a person unconnected to the parties to the complaints and for the right to apply for a review of the outcome of that investigation by a third party who is chosen with the agreement of the unions and the personnel officer where either party to the complaint is not satisfied with the conduct or outcome of that investigation. The policy is clear that where a complaint is upheld, the personnel officer must consider whether in view of the nature of the complaint and the contents of the investigating officer’s report, the subject of the complaints should be subjected to disciplinary sanction. Where this is the case, the full rigours of the disciplinary code apply.
The Bill provides the framework within which conduct and performance issues will be dealt with in the Civil Service and makes provision for the imposition of a range of disciplinary actions where allegations of misconduct have been upheld. It is normal practice in employment to develop internal procedures and policies in negotiation with staff unions to give practical effect to legislative provisions. The internal policies provide detailed procedures that ensure management maintains satisfactory standards of conduct and performance and staff are provided with access to procedures whereby alleged failures to comply with these standards may be fairly and sensitively addressed.
These internal procedures and policies are in line with codes of practice issued by the Labour Relations Commission under the Industrial Relations Act 1990 on grievance and discipline and codes of practice issued by the Health and Safety Authority on bullying and harassment. The procedures are kept under review in partnership with staff unions to ensure compliance with the codes of practice issued under the Safety, Health and Welfare At Work Act 1989, the Industrial Relations Act 1990 and the Employment Equality Acts 1998 and 2004. I am not prepared to accept this amendment.
Mr. Howlin: I am disappointed the Minister of State will not accept the amendment. There is a good anti-bullying code of practice in the Civil Service. Why is the Minister of State reluctant to give it legal acknowledgement? The amendment is reasonable in proposing to insert “that the Minister will take measures to ensure that a ... code of practice to combat bullying and harassment is enforced in respect of all civil servants to whom this Act will apply”. That it be kept under regular review is a reasonable request. That non-compliance with the code will be deemed to be a misconduct is also a reasonable request.
We are becoming more aware of the seriousness of the issue of bullying for the well-being of a range of workers. It would be an indication of how serious the House regards this matter if there was a reference to it in statute law. Is the Minister of State against that and, if so, why? To claim there is already a good code of practice and, therefore, it does not need to be referred to in the Bill is not a reason. The fact that a good code exists is all the more reason it should be referred to in statute law.
Mr. Parlon: I agree with the Deputy on the threat that exists and how huge an issue it is in the public service and other employment areas. I have outlined the comprehensive policy that has been agreed with the Civil Service unions. We do not need duplication in this area. I am satisfied the comprehensive policy in place is sufficient.
|Boyle, Dan.||Broughan, Thomas P.|
|Bruton, Richard.||Connaughton, Paul.|
|Connolly, Paudge.||Costello, Joe.|
|Cowley, Jerry.||Crawford, Seymour.|
|Crowe, Seán.||Cuffe, Ciarán.|
|Deasy, John.||Deenihan, Jimmy.|
|English, Damien.||Gilmore, Eamon.|
|Gormley, John.||Gregory, Tony.|
|Healy, Seamus.||Higgins, Michael D.|
|Howlin, Brendan.||Kehoe, Paul.|
|Lynch, Kathleen.||McCormack, Padraic.|
|McGinley, Dinny.||McGrath, Finian.|
|McGrath, Paul.||McHugh, Paddy.|
|McManus, Liz.||Morgan, Arthur.|
|Murphy, Catherine.||Murphy, Gerard.|
|Naughten, Denis.||Ó Caoláin, Caoimhghín.|
|Ó Snodaigh, Aengus.||O’Dowd, Fergus.|
|O’Keeffe, Jim.||O’Shea, Brian.|
|O’Sullivan, Jan.||Pattison, Seamus.|
|Penrose, Willie.||Quinn, Ruairí.|
|Rabbitte, Pat.||Ryan, Seán.|
|Sargent, Trevor.||Sherlock, Joe.|
|Shortall, Róisín.||Stagg, Emmet.|
|Timmins, Billy.||Twomey, Liam.|
|Ardagh, Seán.||Brady, Johnny.|
|Brady, Martin.||Brennan, Seamus.|
|Browne, John.||Callanan, Joe.|
|Callely, Ivor.||Carey, Pat.|
|Carty, John.||Cassidy, Donie.|
|Cooper-Flynn, Beverley.||Coughlan, Mary.|
|Cregan, John.||Cullen, Martin.|
|Curran, John.||Davern, Noel.|
|Dempsey, Noel.||Dempsey, Tony.|
|Dennehy, John.||Devins, Jimmy.|
|Ellis, John.||Fitzpatrick, Dermot.|
|Fleming, Seán.||Fox, Mildred.|
|Gallagher, Pat The Cope.||Glennon, Jim.|
|Grealish, Noel.||Hanafin, Mary.|
|Harney, Mary.||Haughey, Seán.|
|Healy-Rae, Jackie.||Hoctor, Máire.|
|Keaveney, Cecilia.||Kelleher, Billy.|
|Kelly, Peter.||Killeen, Tony.|
|Kirk, Seamus.||Kitt, Tom.|
|Lenihan, Brian.||Lenihan, Conor.|
|McEllistrim, Thomas.||McGuinness, John.|
|Martin, Micheál.||Moynihan, Donal.|
|Moynihan, Michael.||Mulcahy, Michael.|
|Nolan, M. J.||Ó Cuív, Éamon.|
|O’Connor, Charlie.||O’Dea, Willie.|
|O’Donnell, Liz.||O’Donovan, Denis.|
|O’Flynn, Noel.||O’Keeffe, Batt.|
|O’Malley, Fiona.||O’Malley, Tim.|
|Parlon, Tom.||Power, Peter.|
|Roche, Dick.||Sexton, Mae.|
|Smith, Brendan.||Smith, Michael.|
|Treacy, Noel.||Wallace, Dan.|
|Wallace, Mary.||Wilkinson, Ollie.|
Mr. Parlon: I wish to clarify remarks I made earlier when discussing amendments Nos. 11, 12 and 22. I now understand that the Houses of the Oireachtas Commission was not involved as I originally indicated. The issue was actually dealt with by administrators because it dealt with standardising the tenure of office to take account of the Houses of the Oireachtas Commission Act 2003.
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