Thursday, 30 June 2005
Dáil Eireann Debate
Acting Chairman (Mr. Glennon):
I draw to the attention of Deputies two printing errors in the published list of amendments made by the Seanad. In amendment No. 8, the lead-in text reads: “In page 19 and before section 19 . . .” This should read: “In page 15 and before section
19 . . .” In amendment No. 9 the same error occurs and the lead-in text should also read: “In page 15 and before section 19 . . .”
Minister of State at the Department of Finance (Mr. Parlon): There are a number of amendments in this group, all of which relate to the Office of the Houses of Oireachtas Commission. For the most part, the amendments proposed are technical and arise out of amendment No. 4. The purpose of the amendments is to clarify dismissal arrangements for staff in the Office of the Houses of the Oireachtas Commission. I will explain the background to the amendments.
Currently, section 14 of the Bill amends section 20 of the Staff of the Houses of the Oireachtas Act 1959. As drafted, the section provides that the dismissing authority for all officers at principal officer level and above in the Office of the Houses of the Oireachtas shall be the Houses of the Oireachtas Commission and for all officers below principal officer level shall be the Secretary General of that office. This is in line with the general principles of the Bill.
Section 14 does not currently amend the provisions in section 20 of the 1959 Act relating to the dismissal of the Clerk of the Dáil, Clerk Assistant of the Dáil, Clerk of the Seanad, Clerk Assistant of the Seanad, the Superintendent and the Captain of the Guard. In these cases the dismissing authority is still the Government, following a process of consultation with the relevant chairman and the Houses of the Oireachtas Commission. This provision is not fully in line with the central principles in the Bill.
Following discussions with the Office of the Houses of the Oireachtas and on the advice of the Office of the Attorney General, I propose a new Part 3 of the Bill to address the matter by bringing together a number of amendments on the Houses of the Oireachtas and the commission. In light of the new devolved dismissal arrangements envisaged in the Bill, it would be inconsistent with the independence of the Houses to have the Government as the appropriate dismissing authority for the officers in question. The amendment will not result in a significant change in the current policy in the Bill but will instead retain certain protections set out in the 1959 and 2003 Acts which relate to the dismissal of Clerk of the Dáil, Clerk Assistant of the Dáil, Clerk of the Seanad, Clerk Assistant of the Seanad, the Superintendent and the Captain of the Guard.
The effect of the amendment I propose will be to retain the current safeguards set out in the 1959 and 2003 Acts which provide that the dismissal of these officers can only take place after a process of consultation, while at the same time linking the principle of devolved authority, which is one of the central provisions of the amendment Bill. In line with the provisions of the Bill, the responsibility for dismissal will be devolved to the Minister responsible for appointing a successor, who in the case of these officers is the Taoiseach. The practical effect of the amendment will be that the Government can assign the authority to dismiss the Clerk and Clerk Assistant of the Seanad and of the Dáil to the Taoiseach who may act on the recommendation of the Cathaoirleach or the Ceann Comhairle, as the case may be, following consultation by him with the Houses of the Oireachtas Commission.
In the cases of the Superintendent and the Captain of the Guard, the dismissing authority will again be the Taoiseach, after consultation with the Ceann Comhairle, the Cathaoirleach and the commission. The rationale for assigning the responsibility to the Taoiseach comes from the fact that the Taoiseach, following a similar process of consultation, is also the appointing authority for each of these officers. This is consistent with the provision in section 7 of the Bill where the Government can assign the dismissing authority to the Minister who has the power of appointing a successor to that civil servant.
No change is proposed in regard to 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 will mean 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.
A consequential amendment arising out of the new part in the Bill 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 Civil Service Regulation Act 1956 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.
Amendments Nos. 1, 2 and 3 are technical and 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 from the measures set out in that action. This provision will ensure all Secretaries General are treated in a similar manner. Amendment No. 4 will give effect to the arrangements for dismissals in the Office of the Houses of the Oireachtas that I have outlined. This amendment will insert a new Part 3 to the Bill. The remainder of the amendments in this group are technical and give effect to the provisions I have set out.
It is proposed to delete section 14 of the Bill. This section provides that the dismissal of a member of staff at principal officer grade 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. It is proposed to delete section 15 of the Bill to move it to the new Part 3 of the Bill. Amendment No. 5 replicates the exact text contained in section 15 and moves it to the new Part of the Bill which deals specifically with the Office of the Houses of the Oireachtas. Similarly, I propose to move section 16 of the Bill to the new Part 3 of the Bill. Amendment No. 6 is required to replicate the provisions of this section in the new Part of the Bill. I propose amendment No. 7 to provide for the amendment of the Staff of the Houses of the Oireachtas Act 1959 in the Long Title of the Bill. I propose Amendment No. 8 to provide for the amendment of the Houses of the Oireachtas Act 2003 in the Long Title of the Bill.
Mr. Bruton: On the last occasion there was confusion about consultation with the Oireachtas Commission. As I recall, Deputy Howlin, a member of the commission, could not recall any consultation. The Minister of State was adamant it had taken place and there was a sense that this point was so important that it should be clarified. Will the Minister of State set out the exact position on consultation with the Oireachtas Commission on these proposals?
While we all acknowledge that a Minister is the appropriate authority to dismiss certain senior public servants, the same relationship does not apply between the Taoiseach and the Clerk of the Dáil. The Taoiseach is the head of the Executive and the Clerk of the Dáil is a servant of the Oireachtas. If someone outside of the Oireachtas Commission must act as dismissing agent, it would be appropriate for it to be the Government rather than the Taoiseach. The phraseology used states the Taoiseach “may decide to dismiss having had consultations”. It leaves it open to the Taoiseach to dismiss a Clerk of the Dáil, even if his consultations with the Oireachtas Commission or the Ceann Comhairle do not support that action. The Taoiseach’s freedom to dismiss the Clerk of the Dáil should be curtailed to a greater extent than is the case in the provisions set out.
It is convenient to choose the Taoiseach because in the earlier legislation, he is the appointing authority. Perhaps the earlier legislation ought not to have the Taoiseach as the appointing authority, it should have been the Oireachtas Commission or the Government. Arguing that consistency with earlier legislation is sufficient justification to allow a Taoiseach the power to dismiss the Clerk of the Dáil does not convince me. The Minister of State should elaborate why this selection has been made, if consultation has taken place or if the confusion, where a member of the commission did not know of any consultation, has been resolved.
The Minister of State should clarify what discussions he has had with the Oireachtas Commission and if the commission has been fully consulted on the amendments being introduced. There was confusion on the last occasion and the Minister of State made a statement where he admitted he had not had consultations with the commission. It is important that we do not import into the Bill an arbitrary power for the Taoiseach when we have gone to the trouble of ensuring the affairs of the Houses of the Oireachtas are run by the Houses of the Oireachtas Commission. That must be clarified.
The appointment structure must also be clarified. For anyone of the grade of principal officer or above, dismissal is basically a recommendation of the Secretary General of the Office of the Houses of the Oireachtas. Is that consistent with the provisions for other sections in the Civil Service?
We were also told the Minister of State was importing on a sectoral basis references to whistleblowers, as was requested by the Labour Party, where, if a civil servant had come across material he felt should be divulged, it would not become a reason for summary dismissal. Do the same rules apply to the staff of the Houses of the Oireachtas?
Mr. Parlon: I clarified to the House that my side had given a misunderstanding on the degree of consultation. The amendments were proposed by the staff of the Office of the Houses of the Oireachtas and were submitted to the Government following consultation with the Office of the Attorney General. After considering the proposals, the Government agreed the proposed amendments were an appropriate way to deal with dismissal arrangements for these officers. Additionally, the representative of the Minister for Finance on the Houses of the Oireachtas Commission offered members of the commission an opportunity to raise any issues they had regarding the proposed amendments. One Deputy took this opportunity to raise the issue.
The proposed amendments reflect the arrangements in the 1959 and 2003 Acts for dismissal of certain officers in the Office of the Houses of the Oireachtas. If any new arrangements were put in place, it would represent a policy change in respect of the Office of the Houses of the Oireachtas and it would not be appropriate to deal with such significant change in a piecemeal manner in the Bill.
We all appreciate that assigning the dismissing authority for key officers in the Houses of the Oireachtas is complex. In the unlikely event of it happening, it would be a sensitive issue to be dealt with. The importance of the role of the commission, the Ceann Comhairle and the Cathaoirleach is highlighted in the consultative arrangements set out in the 1959 and 2003 Acts that relate to the Office of the Houses of the Oireachtas. In light of the role of the Clerks and the Clerk Assistants to provide independent advice to Chairs and Members, it is not appropriate to provide that the appointing or dismissing authority lies exclusively in the hands of the chairman of the Houses of the Oireachtas Commission. The aim of the particular provisions relating to the dismissal of the officers of the Houses is to safeguard this underlying principle of independent advice.
Mr. Bruton: I recognise the safeguarding of independence of advice to other committee chairpersons. However, I do not recognise how moving the power of dismissal from the Ceann Comhairle to the Taoiseach resolves this issue. The Taoiseach’s role in the Houses is different from the relationship between Chairs and the Ceann Comhairle. All those officers have a certain duty to impartiality in their appointment and in the way they conduct their role in the Houses. By and large, they observe neutrality and fairness in their approach. However, there is no such obligation on the Taoiseach, who is the leader of the Government, to observe such impartiality. It would be expected of the Taoiseach that he or she would be partial to defend the positions adopted by his or her Government. In that sense, I do not see how this has been resolved.
If the dilemma is that it would be an awful let-down to the committee chairpersons if the Ceann Comhairle was the key officer in deciding dismissals, I do not know how it can be resolved by moving the power to the Taoiseach. In the unlikely event of a dismissal, I have greater faith in the Office of the Ceann Comhairle than in the Taoiseach to consult other committee chairpersons and reach a sensible decision on an impartial and independent basis, taking to heart the interests of the Houses of the Oireachtas. That is no reflection on who the Taoiseach of the day might be. It should be someone on the Houses of the Oireachtas Commission who would be the ultimate dismissing authority.
The whole idea of the commission was to give the Oireachtas independence. The Minister of State claims he does not want to reopen the Oireachtas Commission legislation and question why the Taoiseach was made the appointing agent at that stage. I cannot recall why that decision was made at the time, but I find it hard to believe it was a decision to protect committee chairpersons from a marauding Ceann Comhairle. I do not see that as a likely state of affairs. Holders of the Office of Ceann Comhairle take their independent role seriously. They give up features of party membership and attendance at party meetings. They have the automatic right of re-election, reflecting their special position. We have gone a long way to buttress the independence of the office. I am not persuaded by the Minister of State’s concerns in how the Ceann Comhairle uses this duty and that the power must therefore be given to the Taoiseach.
While it is unlikely this will become a major issue, this is the legacy we will give to future Oireachtas Members. It must be done right and based on a good knowledge of why this is the given legal opinion and how it will work in practice. The Minister of State has not convinced me. I would rather see the Ceann Comhairle as the dismissing authority. There would be a better chance this would be conducted equitably by a Ceann Comhairle than resting it with the Taoiseach.
Ms Burton: I find this puzzling. In the event of a crisis, if the Clerk of the Dáil was dismissed, which has never happened, it would constitute a grave crisis in the administration of the Dáil. If it was done by the Taoiseach, it would inevitably be seen as a heavily politicised decision by the Government of the day. The Houses of the Oireachtas Commission has been established with some degree of independence to mark the Houses as separate from the Government of the day. As we are setting up this administrative structure to give powers to secretaries general and Ministers in line Departments, it is odd not to use the Office of the Ceann Comhairle in this grave scenario that might lead to the dismissals referred to here.
The Ceann Comhairle is a constitutional officer with particular rights, responsibilities and duties to the Oireachtas. The Ceann Comhairle must act with high levels of impartiality as to how the business of the House is conducted. I cannot imagine a graver crisis than the dismissals envisaged in this section. The framework of impartiality for the Ceann Comhairle that is provided for in the Constitution and the legislation for the Houses of the Oireachtas Commission is not enhanced or expanded to provide for the provisions set out in this section.
The Minister of State, Deputy Parlon, who is piloting this legislation, must elaborate on the advice he has been given. While the advice of the Attorney General may have been given to the Minister for Finance, the Minister of State must also have received it. If not, it leaves me feeling uncertain that he has not elaborated on why the Taoiseach of the day is the chosen instrument to effect the dismissals provided for in the Bill.
Mr. Parlon: The rationale for assigning the responsibilities to the Taoiseach comes from the fact that the Taoiseach is also the appointing authority for each of these officers. This approach is consistent with the provision in section 7 where the Government can assign the dismissing authority to the Minister who has the power of appointing a successor to that civil servant. Identifying the appropriate mechanism for dismissal in respect of these officers has been carefully considered.
The approach taken is not exclusive to Ireland. Similar arrangements exist in other states where such appointments are made on the recommendation of a Prime Minister, or equivalent, such as in the UK, Canada, Australia and New Zealand. The head of the office, as is the case with other parliamentary staff, is designated as a civil servant of the State and is independent of the Taoiseach’s or Government’s direction. The proposed amendment reflects the current arrangements set out in the 1959 and 2003 Acts relating to the dismissal of certain officers in the Houses of the Oireachtas. If new arrangements are put in place, it would represent a policy change in respect of the Office of the Houses of the Oireachtas. It would not be appropriate to deal with such a significant change in a piecemeal manner in this Bill. In this context, the Minister for Finance will consider the discussions which have taken place today as well as other discussions with Members and his representatives on the Houses of the Oireachtas Commission. The Minister of State at the Department of Justice, Equality and Law Reform, Deputy Brian Lenihan, will also be involved and will also take these discussions into consideration.
Mr. Bruton: The Minister of State has simply restated his previous comments, namely that this would break with the existing appointment system. He does not offer a rationale for it. The appointment of a successful applicant for the position of Clerk of the Dáil is a fairly routine matter and the Taoiseach simply rubber stamps it. However, dismissal is a different matter and this provided that the Taoiseach would make the appointment because of the convenience of the original legislation. That was a non-controversial position.
Mr. Bruton: However, the purpose of the Houses of the Oireachtas Commission is to establish the independence of the Houses of the Oireachtas from the Executive. It is quite acceptable that a Taoiseach might rubber stamp someone who has been selected successfully through a selection process. However, it raises significantly different issues when a Taoiseach can dismiss that person at his or her own discretion, albeit after consultation.
Mr. Bruton: That is quite likely, but the legislation before us allows a Taoiseach to do so even if the Ceann Comhairle does not support that action. Hence it gives a Taoiseach the authority to dismiss the Clerk of the Dáil in the same way that it gives a Minister the authority to dismiss a Secretary General. However, the relationship is different and the Minister of State has not addressed that issue. He has simply repeated the statements he made on a number of occasions, but simply repeating it does not——
Mr. Bruton: Because a Secretary General is the boss of his or her Department, runs that Department and is responsible for its operations. However, the Taoiseach does not run the Houses of the Oireachtas. They are run by the Houses of the Oireachtas Commission and the Taoiseach does not have the same presumption to dismiss that a chief executive might have.
Mr. Bruton: We are moving away from that position by stating that the Houses of the Oireachtas are self-governing and make their own decisions, which is why we are providing them with a budget and discretion. They will no longer be obliged to have their decisions sanctioned by the Minister for Finance or whoever, as was traditionally the case. However, the Minister of State appears to be carrying over this residual power of the Taoiseach to dismiss for no other reason than precedent. Apart from precedent, is it good practice or a good idea? The Minister of State has not convinced me of that.
I am surprised that having passed through the Seanad and this House, we do not have a more adequate briefing as to why this is a good thing. Ultimately, we try to decide what is a good thing for the long term, not what has precedent or what is done in the UK. I am not persuaded by anything I have heard here but perhaps there is another reason which we have not heard. Appeals to precedent do not convince me.
Ms Burton: We are not getting an explanation. It is coming up to the holidays and all Members are anxious to have a break. Consequently, although the Minister of State and I have sparred on many occasions, I do not wish to reopen it now because for the most part it is lost.
Ms Burton: The Minister of State’s briefing note mentioned appointments made by the British Prime Minister. I am not a lawyer, but as I understand it, the critical difference between our Houses of the Oireachtas and the situation in the United Kingdom where powers of appointment rest with the British Prime Minister, is that the United Kingdom does not have a written constitution. We have a Constitution and the Houses of the Oireachtas and the Office of the Ceann Comhairle are specifically provided for in it. Hopefully, the scenario which we are currently discussing will never happen because it would be a grave constitutional and political crisis. If that power is vested in the Taoiseach of the day, it would be impossible to use because it would become completely politically conflicted. Regarding the Minister of State’s notes on the United Kingdom and the powers of its Prime Minister, is it not true that those powers arise because of the peculiarity of the constitution of the United Kingdom and the other countries to which he referred? I believe the Minister of State mentioned Australia and New Zealand.
Ms Burton: Yes. They are all part of the Commonwealth and the old British empire. We however, are not and I have not heard the Minister refer to republican countries like ours. Has the Minister of State seen the written advice of the Attorney General? Has he had an opportunity to examine and discuss it? The reason he has given to the House does not stand up, from my limited conversations with lawyers and modest knowledge of history. He refers to the British constitution and the British Commonwealth countries which do not have a written constitution. We have a Constitution and while it is the end of term and Deputy Bruton and I are as anxious to leave as the Minister of State, it is a reasonable question.
Mr. Parlon: In terms of consultation, Deputy Howlin represents the Labour Party on the Houses of the Oireachtas Commission. Fine Gael and all parties in both Houses are also represented. This was brought to their notice and the Minister for Finance’s representative, the Minister of State at the Department of Justice, Equality and Law Reform, Deputy Brian Lenihan, asked people to come forward if they had any difficulties. One Deputy raised an issue — I understand it was Deputy Howlin — but he did not have a problem thereafter. Hence, the Houses of the Oireachtas Commission, which is responsible for this matter, is happy to have the Taoiseach in this role.
It would be a grave crisis if such a situation arose and it is unlikely that the Taoiseach would act in a manner that was inconsistent with the views of the Houses of the Oireachtas Commission or of the Ceann Comhairle. As Members are aware, any dismissal would leave the Taoiseach open to challenge, given all the judicial reviews and safeguards in place. Hence, such an action would involve sensitive consultation. Generally, in the history of the Dáil, the Taoiseach has represented the largest party in the House — although a certain party previously put forward suggestions regarding the possibility of having a minority party appoint a Taoiseach. A Taoiseach will not expose himself or herself to challenge. Sensitive consultations and recommendations from the Houses of the Oireachtas Commission would be involved in such a sensitive decision as the dismissal of the Clerk of the Dáil or the Seanad.
Ms Burton: We are seeking a reasonable explanation of a reasonable point. The Minister of State has been chosen by the Minister for Finance to pilot this legislation. It is not good enough that he has not even seen the Attorney General’s advice. We are wasting our time discussing the question with the Minister of State as he does not know what he is talking about.
Mr. Parlon: This provision is entirely consistent with every other Department which is being dealt with. It is consistent with the 1995 and 2003 Acts. It is entirely consistent with everything that has been done previously. We have consulted the Commission of the Houses of the Oireachtas, cross party and across Houses and they have no difficulty with it. It is a sensible way to proceed. As the Deputy has pointed out, in such a grave situation, given the sensitivities involved and all the safeguards that are in place for people who might be dismissed, the Taoiseach of the day would be very open to challenge. The very privileged position of the Ceann Comhairle in terms of the degree of consultation necessary in the matter is fully considered in the Bill.
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